The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 2)

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 2)

Read Part 1 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

DHS has also established the Law Enforcement Support Center (“LESC”), which is administered by Immigration and Customs Enforcement (“ICE”) and serves as a national enforcement information center, answering queries from state and local officials regarding immigration status. (Page 7, lines 7 to 14).

We will revisit the Law Enforcement Support Center later in this post.

At this point I will make two comments;

1). The “DHS has also established the Law Enforcement Support Center”, the LESC was established by the DHS at the express instruction of Congress.

The DHS didn’t just decide to set up a Law Enforcement Support Center on its own volition, Congress instructed the DHS to do so. Congress then appropriated the funds for the DHS to proceed.

2). The Judge makes no mention of why Congress “ordered” the DHS to set up the LESC. The Judge does not address the Congressional intent behind the LESC, the reason or intent of Congress in appropriating funds for the LESC. The Judge failed to do this despite the fact that the Federal Appellate and U.S. Supreme Court have directed her to do exactly that.

Judicial opinions concerning Federal Immigration Law are to be guided by the intent of Congress, not the desires of the Executive or the whimsy of the Executive Agencies. 

B. Overview of S.B. 1070

1. Section 1

Section 1 of S.B. 1070 states that “the intent of [S.B. 1070] is to make attrition through enforcement the public policy of all state and local government agencies in Arizona” and that “[t]he provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Section 1 also states that “there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona.”

2. Section 2

Section 2 of S.B. 1070 adds A.R.S. § 11-1051. Section 2 contains twelve separate subsections. Subsection 2(A) prohibits Arizona officials, agencies and political subdivisions from limiting or restricting the enforcement of federal immigration laws. A.R.S. § 11- 1051(A). Subsection 2(B) requires officers to make a reasonable attempt, when practicable, (Page 7, Line 16 to 28)

to determine an individual’s immigration status during any lawful stop, detention, or arrest where reasonable suspicion exists that the person is unlawfully present in the United States. Id. § 11-1051(B). Subsection 2(B) also requires that all persons who are arrested have their immigration status verified prior to release. Id. Subsections 2(B) and 2(E) provide the process for verifying immigration status and list documents that create a presumption of lawful presence. Id. § 11-1051(B), (E). Mandatory stops for the purpose of immigration status verification are not required or authorized by Subsection 2(B). Subsection 2(C) requires notification of ICE or Customs and Border Protection whenever an unlawfully present alien is discharged or assessed a monetary obligation. Id. § 11-1051(C). Subsections 2(D) and (F) permit law enforcement to securely transport unlawfully present aliens and send, receive, and exchange information related to immigration status. Id. § 11-1051(D), (F). (At page 8, lines 1 to 11).

In addition, Subsection 2(H) permits legal residents of Arizona to bring actions in state court “to challenge any official or agency of [Arizona] that adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.” Id. § 11-1051(H). Subsections 2(I) and (J) address the civil penalties arising from such civil suits, and Subsection 2(K) provides that law enforcement officers are indemnified against reasonable costs and expenses incurred by the officer in connection with any suit initiated under this Section unless the officer is found to have acted in bad faith. Id. § 11-1051(I)-(K). (At page 8, lines 12 to 19).

3. Section 3

Section 3 of S.B. 1070 adds A.R.S. § 13-1509, which provides that “a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of [8 U.S.C. §§] 1304(e) or 1306(a),” federal statutes that require aliens to carry documentation of registration and penalize the willful failure to register. A.R.S. § 13-1509(A). Violation of Section 3 is a class 1 misdemeanor and results in a maximum fine of $100 and a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent violation. Id. § 13-1509(H). Section 3 limits a violator’s eligibility for a suspended sentence, probation, pardon, and commutation of a sentence and requires violators to pay jail costs. Id. (At page 8, lines 19 to 28)

§ 13-1509(D), (E). In the enforcement of Section 3, immigration status may be determined by a law enforcement officer authorized by the federal government or pursuant to 8 U.S.C. § 1373(c). Id. § 13-1509(B). Pursuant to Subsection 3(C), law enforcement officers are not permitted to consider race, color, or national origin in the enforcement of Section 3. Id. § 13- 1509(C). Finally, Section 3 does not apply to “a person who maintains authorization from the federal government to remain in the United States.” Id. § 13-1509(F). (Page 9, lines 1 to 6)

4. Section 4

In Section 4 of S.B. 1070, the Arizona Legislature revised A.R.S. § 13-2319 by adding a provision that permits officers enforcing Arizona’s human smuggling statute to stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe that the person is in violation of any civil traffic law. Id. § 13-2319(E). Section 4 does not make any other changes or additions to Arizona’s human smuggling statute, A.R.S. § 13-2319. (Page 9, lines 7 to 12)

5. Section 5

Section 5 of S.B. 1070 adds two provisions to the Arizona Criminal Code, A.R.S. §§ 13-2928 and 13-2929. A.R.S. § 13-2928(A) provides that it is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway and is impeding traffic to attempt to hire a person for work at another location. Id. § 13-2928(A). Similarly, A.R.S. § 13-2928(B) provides that it is unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic. Id. § 13-2928(B). Finally, A.R.S. § 13-2928(C) provides that it is unlawful “for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” Id. § 13-2928(C). Violation of A.R.S. § 13-2928 is a class 1 misdemeanor. Id. § 13-2928(F). Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which provides that it is unlawful for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, (At Page 9, lines 12 to 28). shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. Id. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States. Id. Violation of A.R.S. § 13-2929 is a class 1 misdemeanor. Id. § 13-2929(F). (At Page 10, lines 1 to 4)

6. Section 6

Section 6 of S.B. 1070 amends A.R.S. § 13-3883 to permit an officer to arrest a person without a warrant if the officer has probable cause to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States.”Id. § 13-3883(A)(5). (At page 10, lines 5 to 9)

 7. Sections 7-13

Sections 7, 8, and 9 amend Arizona’s law imposing sanctions on employers who hire unlawfully present aliens. See A.R.S. §§ 23-212, 23-212.01, 23-214. Section 10 amends A.R.S. § 28-3511 to allow for the immobilization or impoundment of vehicles used in the transporting and concealing of unlawfully present aliens where the driver of the vehicle knew or recklessly disregarded the fact that the alien was unlawfully present. Section 11 creates the “gang and immigration intelligence team enforcement mission fund” for civil penalties paid pursuant to Subsection 2(I). Finally, Section 12 provides for the severance of any unconstitutional provisions, and Section 13 provides a short title for the enactment. (Page 10, lines 10 to 18)

C. Procedural Posture

The United States filed its Complaint challenging the constitutionality of S.B. 1070 on July 6, 2010, naming as Defendants the State of Arizona and Governor Brewer in her official capacity (collectively, “Arizona”). On the same day, it also filed a Motion requesting that the Court preliminarily enjoin Arizona from enforcing S.B. 1070 until the Court can make a final determination as to its constitutionality. (Doc. 6, Pl.’s Lodged Proposed Mot. for Prelim. Inj.) (Page 10, Lines 19 to 24).

The United States argues principally that the power to regulate immigration is vested exclusively with the federal government, and the provisions of S.B. 1070 are therefore preempted by federal law. The Court held a Hearing on Plaintiff’s Motion on July 22, 2010(Page 10, Lines 25 to 28)

The Executive Agencies presenting these arguments are not exclusively empowered to do anything …. Congress has the “exclusive power” to create and write our Immigration Laws, those laws that regulate who can legally enter the Country … the Executive Agencies who brought this lawsuit share “concurrent” responsibility for enforcement of the Immigration Laws.

When the above paragraph, “The United States argues principally that the power to regulate immigration is vested exclusively with the federal government” it is the Department of Justice, not the Congress, who is presenting the argument. (“the Hearing”). S.B. 1070 has an effective date of July 29, 2010. The Court now considers the United States’ Motion for Preliminary Injunction. (Page 11, Lines 1 and 2)

III. LEGAL STANDARDS AND ANALYSIS

A. General Legal Standards

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008) (citations omitted). The United States primarily asserts that the statutory provisions contained in S.B. 1070 are preempted by federal law. The Supremacy Clause of the United States Constitution makes federal law “the supreme law of the land.” U.S. Const. art. VI, cl. 2. The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers.4 While holding that the “[p]ower to regulate immigration is unquestionably exclusively a federal power,” the Supreme Court concluded that not every state enactment “which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised.De Canas v. Bica, 424 U.S. 351, 354-355 (1976). (Page 11, Lines 3 to 17)

The following paragraphs are very important, as will be seen in the next few pages of this opinion. In the following paragraphs the Judge reviews the topic of “Federal preemption”, the basis of the Department of Justice Lawsuit. For the DOJ to prevail in this suit, it must present evidence to support its “allegations” that the Arizona Law violates one of the three standards for preemption. Let me state that again; the Department of Justice lawsuit cannot prevail unless the Department of Justice can establish a violation of one of three stated elements of the doctrine of  Federal preemption.

Federal preemption can be either express or implied. Chicanos Por La Causa v. Napolitano (Chicanos Por La Causa I), 544 F.3d 976, 982 (9th Cir. 2008), cert. granted, 78 U.S.L.W. 3065, 78 U.S.L.W. 3754, 78 U.S.L.W. 3762 (U.S. June 28, 2010) (No. 09-115).

There are two types of implied preemption: field preemption and conflict preemption. Id. Field preemption occurs “where ‘the depth and breadth of a congressional scheme . . .occupies the legislative field.’” Id. (quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (Page 11, lines 17 to 23)

Once again, it has been held that the “Congressional Branch of the Federal Government” has the exclusive right to regulate Immigration, not the Executive Branch …

Preemption: There are three and only three different types of preemption.

1).  Express Preemption

Where Congress, not the Executive Branch clearly and unequivocally states that the area of law is reserved for the Federal Government. Express preemption occurs only when a federal statute explicitly confirms Congress’s intention to preempt state law. English v. General Elec. Co., 496 U.S. 72, 78-79 (1990). “If a federal law contains an express pre-emption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress’ displacement of state law still remains.” Altria Group v. Good, 555 U.S. ___ (2008), Docket Number: 07-562.

Implied preemption can occur in two ways: field preemption or conflict preemption. Massachusetts Ass’n of HMOs v. Ruthardt, 194 F.3d 176, 179 (1st Cir. 1999).

 2. Conflict preemption

Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824). Conflict arises when it is impossible to comply with both the state and federal regulations, or when the state law interposes an obstacle to the achievement of Congress’s discernible objectives. Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992).

3. Field preemption

Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to “occupy the field” in that area of the law, i.e. to warrant an inference that Congress did not intend the states to supplement it. Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992). See also Rice v. Santa Fe Elevator Corp. For example, the courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959); Machinists v. Wisconsin Emp. Rel. Commission, 427 U.S. 132, 140-48 (1976).

A Federal Claim of “preemption” must satisfy one of these three sets of criteria.

Foot Note 4

 A variety of enumerated powers implicate the federal government’s long-recognized immigration power, including the Commerce Clause, the Naturalization Clause, and the Migration and Importation Clause. See U.S. Const. art. I, § 8, cl. 3-4; art. I, § 9, cl. 1; see also Fong Yue Ting v. United States, 149 U.S. 698, 706 (1893); Chae Chan Ping v. United States, 130 U.S. 581, 603-04 (1889).

(Page 11, lines 25 to 28).

 Implicate?  What and where?

Again the Immigration Laws of the United States are created by the Congressional Branch of the Federal Government, not the Executive Branch.  When one reads “Federal Government’s Immigration Power” – that power rests with Congress. Any power enumerated in United States Immigration Law has been so enumerated by the Congress of the United States not the Executive Branch. Again, the United States Supreme Court has instructed the lower Federal Courts to look to the intent of Congress when they interpret our Federal Immigration Statutes.

541 (2001)). Conflict preemption describes a situation in which “compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (internal quotations and citations omitted). An actual, as opposed to hypothetical or potential, conflict must exist for conflict preemption to apply. Id. (Page 12, lines 1 to 5).

as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”. The intent of Congress. Note that the Court has now defined “conflict preemption”.

B. Likelihood of Success on the Merits

The United States must first demonstrate a likelihood of success on the merits. Winter, 129 S. Ct. at 374. The United States challenges S.B. 1070 on its face, before it takes effect on July 29, 2010. (Pl.’s Mot. at 7.) “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). The Supreme Court later observed, in considering a facial challenge, “[S]ome Members of the Court have criticized the Salerno formulation, [but] all agree that a facial challenge must fail where a statute has a ‘plainly legitimate sweep.’” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quoting Washington v. Glucksberg, 521 U.S. 702, 739-40 & n.7 (1997) (Stevens, J., concurring in judgments)). In deciding a facial challenge, courts “must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.” Id. at 449-50 (quoting United States v. Raines, 362 U.S. 17, 22 (1960)). (Page 12, lines 6 to 19)

1. Preemption of Overall Statutory Scheme

As discussed above, S.B. 1070 contains several provisions adding to and amending Arizona law. While the United States has requested that the Court enjoin S.B. 1070 in its entirety, it specifically challenges only select provisions of S.B. 1070. (See Pl.’s Mot. at 12 n.8 (noting that “the instant motion does not seek to enjoin” Sections 7-9 of S.B. 1070 and that Sections 11-13 “are administrative provisions which are not the subject of this dispute”).) The United States also argues that the overall statutory scheme of S.B. 1070 is preempted because it attempts to set immigration policy at the state level and interferes and conflicts with federal(Page 12, lines 20 to 28).

Again, the “Federal” preemption argument. I’m looking forward to reading the specifics of how the Arizona Law is preempted, not by the imaginings of the Obama Administration and its Executive Agencies, but how the Arizona Law is in conflict with one of the three specific types of preemption. The Administrative Agencies must present proof that the Arizona Law violates one of the three enumerated types of “preemption”. I’m looking forward to reading the Court’s analysis of the Congressional intent…                

 immigration law, foreign relations, and foreign policy. (Id. at 12-25.) Section 1 of S.B. 1070 declares a unified, state-wide public policy, providing: The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. S.B. 1070 § 1. The United States urges the Court to enjoin S.B. 1070 as an integrated statutory enactment with interlocking provisions. (Pl.’s Mot. at 12-25.) The United States asserts that Section 1 animates and “infuses” the operative sections of the law. (Hr’g Tr. 13:4-14:5.) “[W]hen the constitutionality of a state statute is challenged, principles of state law guide the severability analysis and [courts] should strike down only those provisions which are inseparable from the invalid provisions.” Costco Wholesale Corp. v. Maleng, 522 F.3d 874, 886 (9th Cir. 2008) (citing Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 556-57 (9th Cir. 2004)). “A court should not declare an entire statute unconstitutional if the constitutional portions can be severed from those which are unconstitutional.” State v. Ramsey, 831 P.2d 408, 413 (Ariz. Ct. App. 1992) (citing State v. Prentiss, 786 P.2d 932, 937 (Ariz. 1989)). Under Arizona law, it is well settled . . . that where the valid parts of a statute are effective and enforceable standing alone and independent of those portions declared unconstitutional, the court will not disturb the valid law if the valid and invalid portions are not so intimately connected as to raise the presumption the legislature would not have enacted one without the other, and the invalid portion was not the inducement of the act. Selective Life Ins. Co. v. Equitable Life Assurance Soc’y of the U.S., 422 P.2d 710, 715 (Ariz. 1967) (citing McCune v. City of Phx., 317 P.2d 537, 542 (Ariz. 1957)). In determining whether potentially unconstitutional provisions of S.B. 1070 may be severed from the remainder of the enactment, the primary concern is legislative intent. See id. at 715-16 (citing City of Mesa v. Killingsworth, 394 P.2d 410, 413 (Ariz. 1964)). Where a statute contains a severability provision, Arizona courts generally attempt to give effect to the severability clause. Id. at 715. (Page 13, lines 1 to 38)

Section 12(A) of S.B. 1070 provides for the severability of S.B. 1070’s provisions, stating that if any provision of the Act “is held invalid, the invalidity does not affect other provisions . . . that can be given effect without the invalid provision.” Arizona’s Legislature intended the provisions of S.B. 1070 to be severable in order to preserve the constitutionalprovisions of the Act. As a result, where the provisions of S.B. 1070 are “effective and enforceable standing alone and independent” of any unconstitutional provisions and the valid portions are not so “intimately connected” to any invalid provision as to raise the presumption that the Arizona Legislature would not have enacted the valid provisions without the invalid provisions, S.B. 1070’s provisions are severable. See Selective Life Ins., 422 P.2d at 715.

This writer will defer comments concerning how the Judge’s willfully “over looked” opportunities to sever and keep portions of the Arizona Law, as she was required to do …

While Section 1 of S.B. 1070 provides a statement of the Act’s intent and purpose, it does not create a single and unified statutory scheme incapable of careful provision by provision analysis. The Court cannot enjoin a purpose; the Arizona Legislature is free to express its viewpoint and intention as it wishes, and Section 1 has no operative function. However, this is not to say that Section 1 is irrelevant. The expression of the Legislature’s intent provides context and backdrop for the functional enactments of S.B. 1070, and the Court considers it in this capacity as it analyzes the other provisions of the law. S.B. 1070 will not be enjoined in its entirety. The Court will not ignore the obligation to preserve the constitutional provisions of a state legislative enactment or S.B. 1070’s severability clause. The Court thus evaluates the constitutionality of the individual provisions of S.B. 1070 challenged by the United States. (Page 14, lines 1 through 20).

We are approximately 1/3 of the way through the legal opinion and the Judge has not offered a legal finding or conclusion.

The Judge has made two false statements,

1). “Unlawful presence in the United States is not a federal crime” and

2). That an illegal alien needs to have been “convicted” in a criminal proceeding and subsequently deported before their unauthorized “re-entry” could be considered a crime”.

In the section immediately below, the Judge begins her consideration of the Arizona Law, in preparation for her first ruling.

The issue that will be addressed is this: The Arizona Legislature stated an intention that those individuals who have been “arrested” have their immigration status determined before the person is released and that any law enforcement officer presented with one of 11 different types of identification, should presume that the individual presenting the identification is a lawful resident of the United States.

 A.R.S. § 11-1051(B). Section 2(B) also states that if an officer is presented with one of the following forms of identification, the officer is to presume that the person is not an unauthorized alien: (1) a valid Arizona driver license or identification license; (2) a valid tribal enrollment card or other form of tribal identification; or (3) a valid United States federal, state, or local form of identification, provided that the issuing entity requires proof of citizenship before issuance. Id.

The United States argues that this section is preempted because (1) it will result in the harassment of lawfully present aliens and (2) will burden federal resources and impede federal enforcement and policy priorities. (Pl.’s Mot. at 25-32.) (Page 15, lines 1 to 8).

 The Judge’s opinion in this section is in artfully worded. It is actually quite amusing. It is a shame that the subject matter is so serious …

 The problem with the wording in the Judge’s opinion is occasioned by the language of the Department of Justice’s pleading.

Let us help the Judge do her job correctly.

Or let us pretend we are the Judge’s Constitutional Law Professor and this is the Judge’s final exam in her first year Constitutional Law Class.

Step One: Examine the pleading. What is the Department of Justice alleging?

“The United States (The DOJ) argues that this section is preempted because

1). It will result in the harassment of lawfully present aliens, and

2). Will burden federal resources and impede federal enforcement and policy priorities.

Step 2: Determine if a “preemption argument” has been made or determine if the pleading “fails on its face”, because it fails to state a claim enforcebale under the Federal doctrine of preemption.

There are three and only three enumerated types of “preemption”. Does the lawsuit state a claim under one of three enumerated “preemptions”?

Claim 1: “It will result in the harassment of lawfully present aliens,”

Which of the three “preemptions” does this claim fall under?

A). Express preemption: Has the Congress expressly stated that the Federal Government has an exclusive right to the “harassment of lawfully present aliens”. How funny …. The Government has not stated a cause of action of express preemption …

B). Conflict Preemption: Does the DOJ allege that “compliance with both federal and state regulations is a physical impossibility”… as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  An actual, as opposed to hypothetical or potential conflict….

No,  The DOJ has failed to state a cause of action under the theory “conflict preemption”.

C). Field preemption: Has the Congress indicated that the States should be denied the opportunity to supplement the Federal Government’s harassment of “lawfully present aliens”.

Again, we are conducting the analysis that Judge Bolton was required to complete prior to rendering her decision. A claim of harassment does not fall within the purview of the Federal preemption doctrine. A claim of harassment may serve as the basis of a “civil rights claim”, however, it is not an appropriate topic for consideration under the “preemption doctrine”.

We are not determining whether the Arizona law will, in fact, result in the harassment of “lawfully present aliens”, because that is not what is required at this point in time.

We are, as the Judge should have, evaluating whether the DOJ’s claim, assuming the claims are true, meet the requirements of one of the three classifications for preemption.

The answer is an unequivocal NO. The claim, as stated, is not one subject to the Federal preemption doctrine.   

Read Part 1 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

Read Part 3 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-3/

Read Part 4 Here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-4/  

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 1)

The purpose of this post is to review the legal opinion recently issued by Judge Bolton in the Lawsuit filed by the Department of Justice against the State of Arizona, the so called Arizona Immigration Law Suit.

 I’ve attached various PDFs for your reference.

I’ve also included “links” to a variety of other sources including the Federal and State Statutes that are involved.

Before we begin this multi section post, I’d like to briefly some items:

1). The Judges opinion is in black text, McAuley’s World Comments are in blue.

2). At the end of the black text sections I’ve referred to the location of the text in the Judge’s opinion. The ‘Page” refers to the page number in the PDF, located at the top of the PDF page – as such page 5 of the opinion is page 6 of the PDF. The line numbers are self explanatory.

Judge Bolton’s Opinion Here: Judge Bolton’s Ruling SB1070

3) The Department of Justice Lawsuit can be reviewed here: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

4) The Arizona Law can be located here: http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.htm

5).  In the following pages you read references to the “Federal Government”. The Federal Government has three parts, each with their own jobs under the Constitution. The Executive Branch includes the President and the Executive Agencies. The Executive Agencies include the Department of Justice, the Department of Homeland Security the FBI, and the Post Office, to name a few. The second “part” of the Federal Government is the “Congressional Branch”, and is made up of the U.S. Congress and the U.S. Senate. The third part of the Federal Government is the Federal Courts or Judiciary. In the following pages you will read that the “Federal Government has the “exclusive right” to formulate our Immigration Laws. This is true, however, not all three of the branches of our Federal Government have this “exclusive right” and are authorized to “write” our Immigration Laws. Only the Congressional Branch has this power, the power is exclusive to Congress. For over a century the United States Supreme Court has stated that we must look to the intent of Congress when we attempt to interpret our Immigration Laws. As you read this post remember that when you read the Court or Department of Justice refer to the “Federal Government” this or the Federal Government that … it is the U.S. Congress they are referring to… even if the DOJ authors of the lawsuit try to inflate its own importance … 

The Judges Opinion is in “black type”. McAuley’s World Comments/Additions in Blue

Preface: The state of the law prior to the DOJ lawsuit

The MSM has created a great deal of confusion in an attempt to support the Obama Administration’s Department of Justice. There are many who falsely believe that the State of Arizona was attempting to “fundamentally change” the Immigration Law of the United States when it passed SB 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act”.

You will never here the MSM refer to this law by its given name, ““Support Our Law Enforcement and Safe Neighborhoods Act,”

The State of Arizona’s Law, SB 1070, was and is consistent with the existing U.S. Immigration Law at the time of its passage. It is, in fact, consistent with the Congressional intent expressed in our system of Federal Immigration laws.

The most concise statement of the law concerning the concurrent jurisdiction of the State and Federal Governments that I could find is contained in this April 2, 2002 memo from the Department of Justice.

2002 DOJ Memo

The DOJ memo of April 2, 2002 reflects the current state of Immigration Law in this land.

It is the Obama Administration who is, once again, trying to “fundamentally transform” our legal system. The State of Arizona’s intent was clear and straight forward, SB 1070 reflects a constitutionally permissible exercise of State authority to assist the Federal Government in the enforcement of our Immigration Laws;

On April 2, 2002 Attorney General John Ashcroft stated that this was the law of the land:

“We summarize our conclusions:

1) States have inherent power, subject to Federal preemption, to make arrests for violation of Federal Law.

2). Because it is ordinarily unreasonable to assume that Congress intended to deprive the Federal Government of whatever assistance States may provide in indentifying and detaining those who may have violated Federal Law, Federal Statutes should be presumed not to have preempted this authority.

This Office’s 1996 advice that Federal Law precludes State Police from arresting aliens on the basis of civil deportability was mistaken.

3). Section 1252 C does not preempt state authority to arrest for Federal violation”

With this clearly in mind we will move on to review the legal opinion of Judge Bolton   

My Review of Judge Bolton’s Opinion Follows:

Against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns, the Arizona Legislature enacted a set of statutes and statutory amendments in the form of Senate Bill 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act,” (At Page 2, lines 19-22)

Footnote 1 – Page 2: In this Order, unless otherwise specified, the Court refers to S.B. 1070 and H.B. 2162 collectively as “S.B. 1070,”

Among other things, S.B. 1070 requires officers to check a person’s immigration status under certain circumstances (Section 2 – SB 1070) and authorizes officers to make a warrantless arrest of a person where there is probable cause to believe that the person committed a public offense that makes the person removable from the United States (Section 6, of the Law – SB 1070).  (At Page 2, Line 25 / Page 3, lines 1 to 4).

S.B. 1070 also creates or amends crimes for the failure of an alien to apply for or carry registration papers (Section 3 SB 1070), the smuggling of human beings (Section 4 – SB 1070), the performance of work by unauthorized aliens, and the transport or harboring of unlawfully present aliens (Section 5 – SB 1070). On July 6, 2010, the United States filed a Complaint with this Court challenging the constitutionality of S.B. 1070, and it also filed a Motion requesting that the Court issue a preliminary injunction to enjoin Arizona from enforcing S.B. 1070 until the Court can make a final determination as to its constitutionality. The United States argues principally that the power to regulate immigration is vested exclusively in the federal government, and that the provisions of S.B. 1070 are therefore preempted by federal law. (At Page 3, lines 8-14)

The United States, by way of the Obama Administration’s Department of Justice  argued that the Obama Executive Branch is vested with the exclusive power to regulate Immigration and that the Obama Executive Branch is empowered to “pick and choose” which elements of the Immigration Laws it will enforce and that the Obama Administration through the Executive Branch can preempt any other Governmental entity, including the Congress, in the creation, implementation and enforcement of our Immigration Laws. Judge Bolton’s shallow legal reasoning failed to grasp the difference between what the allegations and the “supporting proof” presented by the Obama’s Administration Department of Justice. The Court notes that S.B. 1070 is not a freestanding statute; rather, it is an enactment of the Arizona Legislature that adds some new sections to the Arizona Revised Statutes (“A.R.S.”) and amends some preexisting sections. S.B. 1070 also contains a severability clause, providing that, [i]f a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable. S.B. 1070 § 12(A). Therefore, the Court cannot and will not enjoin S.B. 1070 in its entirety, as certain parties to lawsuits challenging the enactment have requested. The Court is obligated to consider S.B. 1070 on a section by section and provision by provision basis.  (At Page 3, Lines 14 to 23).

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law: (At Page 5, Lines 6 to 9)

Portion of Section 2 of S.B. 1070 A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person. (At Page 5, lines 9 through 13).

Section 3 of S.B. 1070 A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers. (At Page 5, lines 13 to 15).Portion of Section 5 of S.B. 1070 A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work(At Page 5, lines 15 to 17).

Section 6 of S.B. 1070 A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States. (At Page 5, Lines 17 to 20).

The Court’s findings will be addressed later in this post, in the section of the opinion where the offers its rationale for these findings. 

BACKGROUND

A. Overview of Federal Immigration Law

 Congress has created and refined a complex and detailed statutory framework regulating immigration.  (At Page 6, line 3 & 4).

This is correct – Congress is empowered to write our Immigration Laws, not the Executive Branch nor the Executive Agencies. Unfortunately, this is the only time this ultra liberal activist Judge calls this to mind in this opinion. The Judge fails to reference “the intent of Congress” even once in this 36 page document. 

The federal immigration scheme is largely enacted through the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., (At Page 6, lines 4 & 5).

Yes, the “INA” was passed by Congress. The INA has also amended by Congress on many occasions. Congress amended the INA when Congress passed “The Comprehensive Immigration Reform Bill of 1996.” Congress amended the law again after the attacks on 911, after the publication of the 911 Commission Report. Absent the 911 Commission Report and Congress’s legislative response, there would be no “Department of Homeland Security” today. The Judge fails to mention any of the Congressional enactments that led to the creation of the Department of Homeland Security. How does one consider “Congressional intent” without mentioning Congressional activity that abolished the prior Immigration and Nationalization Service and replaced it with the Department of Homeland Security?

which empowers various federal agencies (including the Department of Justice (“DOJ”), Department of Homeland Security (“DHS”), and Department of State (“DOS”)) to administer and enforce the immigration laws. See, e.g., id. §§ 1103-1104. (Page 6, lines 5 to 10)

First, what does the Judge “acknowledge” in the first sentence of this section? That the Executive Branch Agencies, which include the DOJ (Department of Justice), DHS (Department of Homeland Security) and DOS (Department of State) are “empowered” to administer and enforce the “immigration laws”. But empowered by whom? The Executive Agencies are empowered by Congress, not the Executive Branch. These Executive Agencies are empowered by Congress, not the President. The DOJ, DHS and DOS, are totally dependent on the authority granted them by the U.S. Congress. The agencies only have those powers that Congress has delegated to them.

The States, on the other hand, are independent sovereign governments. The States have rights independent of those rights granted to the Federal Government under our Constitution. Any power not specifically reserved for the Federal Branches of Government are retained by the States. As such the States have their own independent powers. Congress has delegated a shared or concurrent jurisdiction of many Immigration Law enforcement matters to the States.

Again, the “authority” the Executive agencies wield come from the Congress not the President. All of the Executive Agency’s powers and the Agencies very existence are dependent on Congress. Congress is free to act to abolish the Agencies if and when it so chooses … after all, Congress created each of these Agencies. The Department of Homeland Security didn’t exist before 911 and the INS, the Department of Immigration and Nationalization Services, ceased to exist after the DHS (Department of Homeland Security) was created by Congress.

Among its many provisions, the INA sets forth the conditions under which a foreign national may be admitted to and remain in the United States. Id. §§ 1181-1182, 1184. The INA also contains an alien registration system intended to monitor the entry and movement of aliens in the United States. Id. §§ 1201(b), 1301-1306. (Page 6, lines 8 to 11).

Again, the INA was a law passed by Congress and later amended on several occasions. It is Congress, not the Executive Branch or the States, that is empowered with the exclusive right to set Immigration criteria and the quotas to govern the entry of foreign nationals into the United States. The mechanisms used to enforce the Immigration System created by Congress are shared by the Executive Agencies and the States. The Agencies and the States have “concurrent” enforcement responsibilities. We will discuss the alien registration system(s) later in this post.

Various actions may subject an alien to being placed in removal proceedings, such as entering the United States without inspection, presenting fraudulent documents at a port of entry, violating the conditions of admission, or engaging in certain other proscribed conduct. Id. §§ 1225, 1227, 1228, 1229, 1229c, 1231. Violations of immigration laws may also subject an alien to civil and criminal sanctions. E.g., id. §§ 1325, 1306, 1324c. Unlawful presence in the United States is not a federal crime, although it may make the alien removable. See id. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)-(C).3  (Page 6, line 12 to line 18).

“Unlawful presence in the United States is not a federal crime, although it may make the alien removable.” At page 6, lines 16 & 17.

This is the first outright “falsehood” or “lie” the Judge has tried to pass of as “legal reasoning”.  An alien’s “unlawful presence” can be a “criminal act” under U.S. Immigration Law.  A prior criminal conviction is not required. I’m not surprised that the Judge told this “lie” at all. A good deal of her “legal reasoning” is based upon this “lie” being true … What does the Federal Immigration Law “truthfully state”? This is what the Federal Immigration Law passed by Congress States:

THE JUDGES’S FIRST FALSE STATEMENT

Title 8, Chapter 12 § 1326. Reentry of removed aliens:

(b) Criminal penalties for reentry of certain removed aliens

Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection—

(1) whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, imprisoned not more than 10 years, or both;

(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both;

(3) who has been excluded from the United States pursuant to section 1225 (c) of this title because the alien was excludable under section 1182 (a)(3)(B) of this title or who has been removed from the United States pursuant to the provisions of subchapter V of this chapter, and who thereafter, without the permission of the Attorney General, enters the United States, or attempts to do so, shall be fined under title 18 and imprisoned for a period of 10 years, which sentence shall not run concurrently with any other sentence.[1] or

(4) who was removed from the United States pursuant to section 1231 (a)(4)(B) of this title who thereafter, without the permission of the Attorney General, enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien’s reentry) shall be fined under title 18, imprisoned for not more than 10 years, or both.

For the purposes of this subsection, the term “removal” includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law.

(c) Reentry of alien deported prior to completion of term of imprisonment

Any alien deported pursuant to section 1252 (h)(2)  of this title who enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien’s reentry) shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release. Such alien shall be subject to such other penalties relating to the reentry of deported aliens as may be available under this section or any other provision of law.

http://www.law.cornell.edu/uscode/search/display.html?terms=1326&url=/uscode/html/uscode08/usc_sec_08_00001326—-000-.html 

 Three items I’d like you to note before we move on;

1). The Judge lied. Unlawful presence in the United States is a Federal crime, a Federal felony in fact. A first time immigration offense may or may not be a civil infraction. If an illegal alien gains entrance to the Country using stolen or false identification papers, a criminal offense has taken place. (a misdemeanor). The millions of illegal aliens who improperly and wrongfully “reenter” our Country after removal are, in fact, committing a crime, felonies, punishable with up to 20 years in prison. The fact that our southern border is a “revolving door” of exiting and reentering illegal aliens is a fact known to all.

2). How, exactly, does a Local or State Police Officer identify the illegal alien “felons” from the 1st time offenders during the course of their daily law enforcement duties?

3). See Foot Note 3 below.

Federal alien smuggling laws make it a crime to knowingly bring an unauthorized alien into the country, as well as to harbor such a person or to facilitate unlawful immigration. Id. § 1324. Congress also created sanctions to be implemented against employers who knowingly employ aliens who are not authorized to work when it passed the Immigration Reform and Control Act (“IRCA”) in 1986. Id. § 1324a(a)(1)-(2). Federal law contains no criminal sanction for working without authorization, although document fraud is a civil violation under IRCA. Id. § 1324c. In 1996, Congress passed the Illegal Immigration Reform and Immigrant… (At page 6, lines 19 to 25).

While “working without authorization” may not carry a criminal sanction, illegally reentering the Country to do so is a felony … Any employer who harbors or has helped to facilitate illegal immigration is guilty of a criminal felony. Once again, how does a State or Local Law Enforcement officer make these determinations during the course of their daily law enforcement duties?

Foot Note 3:  Unlawful presence is an element of the federal crime of reentry after deportation, 8 U.S.C. § 1326, and unlawful entry into the United States is also a federal crime, 8 U.S.C. § 1325. (At Page 6, line 27 & 28).

Why did the Judge make a blatantly false statement in the body of her opinion and then admit that the statement was false in foot note 3? Because the Main Stream Media will never mention the foot note, just quote the “false” sound bite in the body of the opinion. How many times have you heard an Obama Administration spokesperson or a Liberal MSM pundit or even one of FOX NEW’s talking heads, (there are several light weights at FOX) state or “parrot” unequivocally, that, “Unlawful presence in the United States is not a federal crime”.

As you now know, the statement is false. Illegal presence in the United States, when it gained by an unauthorized reentry, is a felony punishable by up to 20 years in jail. 

Without completing a preliminary investigation there is no way for Law Enforcement Officers to distinguish the felons from the first time offenders, is there?

The Judge’s decision gives rise to another popular and equally false sound bite, “it isn’t a crime unless they reenter after deportation”. After hearing this sound bite one might believe that “deportation” is a prerequisite for “reentry” to be a crime. Not so.  Another false and misleading statement.

The term “deportation” has been replaced by the term “removal”. Title 8, Chapter 12. § 1326, b, 4,  states, “the term “removal” includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law.”.

http://www.law.cornell.edu/uscode/search/display.html?terms=1326&url=/uscode/html/uscode08/usc_sec_08_00001326—-000-.html 

Any illegal alien who is removed, either by criminal trial, civil administrative hearing, by legal order or “by voluntary agreement” and who subsequently reenters the United States without legal authorization, is guilty of a felony violation of the U.S. Immigration Statutes.

http://www.law.cornell.edu/uscode/search/display.html?terms=1326&url=/uscode/html/uscode08/usc_sec_08_00001326—-000-.html 

Responsibility Act (“IIRIRA”), which, among other things, created various employment eligibility verification programs. See Chicanos Por La Causa, Inc. v. Napolitano (Chicanos Por La Causa II), 558 F.3d 856, 861 (9th Cir. 2009). (At Page 7, lines 1 to 3). Federal immigration law also envisions certain areas of cooperation in immigration enforcement among the federal government and state and local governments. See 8 U.S.C. § 1357(g)(1)-(9) (permitting DHS to enter into agreements whereby appropriately trained and supervised state and local officials can perform certain immigration responsibilities); id. §1373 (establishing parameters for information-sharing between state and local officials and federal immigration officials);   (At page 7, lines 4 to 9)

Our liberal, activist, Judge selected her words very carefully here. First, the Federal Immigration Law “envisions” nothing… the law is blind, the law does not anticipate anything… it cannot see a thing, the law cannot foretell the future. The Federal Immigration law, passed by the Congress, was intended to achieve many desired objectives … objectives set by Congress. The liberal activist uses the term “envisioned” for a reason. The activists will refer to the Immigration laws as “federal” implying that the Immigration Law was created or crafted by the Executive Branch rather than by the Congress. That is simply incorrect; it is not a truthful implication. The Courts are bound by U.S. Supreme Court decision and instruction to look to the “intent of Congress”, not the “vision of the Executive Branch” when interpreting our Immigration laws.

§ 1252c (authorizing state and local law enforcement officials to arrest aliens unlawfully present in the United States who have previously been convicted of a felony and deported). (Page 7, lines 9 to 11).

THE JUDGE’S SECOND FALSE STATEMENT: Chapter 8, Section §1252c does not supersede  Chapter 8, §1326  

Title 8, Chapter 12, §1252c, does not supersede the previously discussed Title 8 U.S.C. § 1326, b, 4, above, which states, the term “removal” includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law.”

So while § 1252c addresses removal of those previously convicted of a felony, the Judge is dishonest in limiting her comments in this manner. States are permitted to arrest illegal immigrants who have not been convicted of a felony and who have not been previously deported. Neither prior conviction nor “deportation” is required to commit an illegal and unauthorized “reentry”, a felonious violation of U.S. Immigration Law. 8 USC § 1326, b, 4,  “the term “removal” includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law…”.

Title 8 U.S.C. § 1326, b, 4, clearly states that the underlying proceeding can take place in either a State or Federal Jurisdiction. An illegal alien apprehended during a burglary or drug sale can agree to a voluntary deportation during his State Court criminal trial, the criminal charges can be dismissed and the illegal alien deported. If that illegal alien reenters the country illegally or without proper authorization, that illegal alien is guilty of felonious conduct.  

The Judge’s statement acknowledges that § 1252c is one area of “concurrent jurisdiction” in our Immigration Laws; however, the Judge did not go far enough in her acknowledgement.

Section 1252c also directs the Executive Branch to work at the behest of the States, yes, section 1252c(b) makes the Executive Branch subservient to the States in the enforcement of the Immigration Law;   

Title 8, Chapter 12, § 1252c, states;

§ 1252c. Authorizing State and local law enforcement officials to arrest and detain certain illegal aliens

(a) In general

Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who—

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

http://www.law.cornell.edu/uscode/search/display.html?terms=§1252c&url=/uscode/html/uscode08/usc_sec_08_00001252—c000-.html

Title 8, Chapter 12, § 1252c, (b) Cooperation

The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials. 

http://www.law.cornell.edu/uscode/search/display.html?terms=§1252c&url=/uscode/html/uscode08/usc_sec_08_00001252—c000-.html 

 The Congress instructed that the Attorney General shall cooperate. Congress did not state that the Attorney General could cooperate when the Department of Justice felt like cooperating, that the DOJ could pick and choose when it wanted to cooperate, that the DOJ could selectively follow this “instruction’ as long as it wasn’t burdensome. The word “shall” is an instruction, a directive, an order to cooperate, not a suggestion that the DOJ might want to cooperate. The Congressional intent is clear and unambiguous.

Read Part 2 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-2/

Read Part 3 Here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-3/

Read Part 4 Here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-4/

The Immigration Debate: Arizona’s Immigration Law – It is past time to call out the AP on their Inaccurate Reporting –

The Immigration Debate: Arizona’s Immigration Law – It is past time to call out the AP on their Inaccurate Reporting; 

AP Claim #1: Arizona helped deport thousands without new law –

AP Claim #2: 10.8 Million or 26% of California Population Illegal

McAuleys World Comments In Blue

It is well pass time that the Associated Press be held accountable for its shoddy reporting and worse, its outright mischaracterizations of the Arizona Law.

By SUZANNE GAMBOA, Associated Press Writer Suzanne Gamboa, Associated Press Writer – Wed Jul 28, 3:12 am ET

WASHINGTON – Without the benefit of their state’s strict new immigration law, officers from a single Arizona county helped deport more than 26,000 immigrants from the U.S. through a federal-local partnership program that has been roundly criticized as fraught with problems.

I wonder what makes this law “strict”?  That it calls on State Law Enforcement to actually enforce the Federal Immigration Laws. The article doesn’t mention that at least 38 States, including the State of California, you know California, the State that has called for “boycotts” of Arizona, have the same laws or substantially the same laws on their “books”.

Statistics obtained by The Associated Press show that the Maricopa County Sheriff’s Office was responsible for deportations or forced departure of 26,146 immigrants since 2007.

This claim is not a “mischaracterization, it is a lie. Simply put, this AP claim is an outright lie. Neither the State of Arizona nor the Maricopa County Sheriff’s Office deported a single individual in 2007. Not one single individual. Zero, nada.

The Maricopa County Sheriff’s Department assisted the Federal Government in deporting 26,146 individuals in 2007. Neither the Maricopa County’s Sheriff’s Department nor the State of Arizona are authorized to deport anyone.

Deportation powers are reserved for the Federal Government, apprehension powers are not. The States and the Federal Government have concurrent jurisdiction for “apprehending” immigration violators. Concurrent jurisdiction for apprehension.  However, only the Federal Government can deport an individual.

Before an individual can be “deported” a “deportation order” must be signed. (The “term” deportation is no longer factual as the Government substituted “removal” and “removal order” for  the terms “deportation” and “deportation order” in 1997, 13 years ago …

The AP article is far from a professional piece of writing.

https://www.usimmigrationsupport.org/deportation.html

From U.S. Immigration Support:   

Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA – 1996), the legal process of deporting a foreign national was called “deportation” and concerned individuals already present in the United States…  Following the enactment of IIRAIRA, both deportation and exclusion are now referred to as “removal” proceedings. If someone is determined to be removable, they are subject to receiving a removal order and must leave the United States. Any person who is not a U.S. citizen can be deported from the United States.

https://www.usimmigrationsupport.org/deportation.html

Generally deportation is removal of an alien from the United States when the alien has been found removable for violating the immigration laws. Deportation is ordered by an immigration judge without any punishment being imposed or contemplated. Prior to April 1997 deportation and exclusion were separate removal procedures. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consolidated these procedures. After April 1, 1997 , aliens in and admitted to the United States may be subject to removal based on deportability. Now called Removal, this function is managed by U.S. Immigration and Customs Enforcement.

Deportation of immigrants and other individuals may result as a consequence for entering the United States illegally. You can also be deported if you are not a citizen and have committed a serious crime.

http://www.ncls-inc.com/immigration/deportation/index.htm

Deportations must be “ordered” by a Federal Immigration Judge and the physical Act of “removal” is undertaken by ICE or Immigration and Custom Enforcement. [ICE may delegate the “physical activities” involved in “removing” an individual to State and Local Law enforcement.]

 If you have been deported, you cannot gain re-entry into the United States for at least five years. It is a felony if you re-enter before the end of the five years. You must also receive permission from the CIS before you re-enter.

http://www.ncls-inc.com/immigration/deportation/index.htm

Reasons for Deportation or Exclusion

Because staying in the United States is a privilege and not a right for non-citizens, the United States government can force an individual to return to his or her home country for a number of reasons, such as:

  • Committing fraud or misrepresenting a material fact in order to get a visa, green card, etc.
  • Conviction of a drug offense (except for possession of a very small amount of marijuana).
  • Conviction of other crime.

http://www.ncls-inc.com/immigration/deportation/index.htm

Once an illegal alien is apprehended, a Federal Immigration Judge must approve any action taken against or on behalf of that alien;

Voluntary departure is usually granted by an immigration judge after an order of deportation for an individual who seeks to leave voluntarily in lieu of forced deportation. 

 http://www.ncls-inc.com/immigration/deportation/index.htm

That’s about a quarter of the national total of 115,841 sent out of the U.S. by officers in 64 law enforcement agencies deputized to help enforce immigration laws, some since 2006, under the so-called 287(g) program.

The Department of Homeland Security Annual Report for 2007, the year discussed in this article states the following:

1). The Department of Homeland Security apprehended 961,000 foreign Nationals in 2007.

2). ICE “detained” 311,000 illegal aliens in 2007.

3). A total of 319,000 aliens were “removed” from the United States in 2007, 244,000 of the removals were affected by ICE with the remaining removals, 75,000 being affected by the CBP (Border Patrol).

4). 891,000 foreign nationals accepted the opportunity to “voluntarily leave” the United States prior to a Federal Judge issuing a formal “removal order”.

The Department of Homeland Security Annual Report notes that:

DHS made a total of 960,756 apprehensions in 2007

The Border Patrol reported 876,787 or 91 percent of all apprehensions.

Ninety-eight percent of Border Patrol apprehensions were along the southwest border

ICE Office of Investigations made 53,562 administrative arrests

ICE’s National Fugitive Operations Program (NFOP) made 30,407 arrests of fugitive and non-fugitive aliens.

The most complete picture of adverse actions involving individual aliens includes aliens who are removed with consequent penalties (319,382) and those who voluntarily return (891,390) – to their Country of origin.

http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_07.pdf  

WHAT TYPE OF “CHERRY PICKED” STATISTIC IS THE ASSOCIATED PRESS AUTHOR USING?

The AP Reporter did not note that in 2008 the last year for which the DHS has reported statistics, apprehensions dropped for the 3rd straight year, to an approximate total of 750,000. A reduction of nearly 600,000 from the record 1.3 million apprehended by the DHS in 2005,   

http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_07.pdf

http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_08.pdf

The tens of thousands of immigrant arrests show local officials already have a significant amount of authority to enforce immigration laws and help remove illegal immigrants from the country.

Yes, there is a mandated concurrent jurisdiction shared by the States and the Federal Government for apprehending those who violate the Federal Immigration Laws. The Department of Homeland Security states that 98% of the Federal arrests for immigration violations take place on the Southern Border and that between 2005 and the end of 2009 the Department of Homeland Security’s own statistics reflect that the total number of apprehensions dropped by nearly 500,000, from a high of  1,300,000 (1.3 million) in 2005 to  a low of 792,000 (792 thousand) in 2008 a  40% reduction in apprehensions over a 3 year period. In January 2006 the Democrats took control of both Houses of Congress. 2005, the year before they took control there were 1.3 million apprehensions, by the end of 2008 when the Obama Administration  was elected, 500,000 fewer apprehensions, a 40% reduction took place …    

But with Maricopa County Sheriff Joe Arpaio the top law officer among all those deputized, questions remain about what’s in store when Arizona gives more officers the power to enforce immigration laws. The federal government already is under fire for doing a poor job of keeping watch on local officers enforcing immigration laws and ensuring safeguards for protecting civil rights are in place.

I’m sorry, if I were the AP editor, this writer would be fired. The Arizona Law does not transfer power, it does not “create” additional power for State Law enforcement officers, it affirms the rights and obligations that already exist. The law confirms the fact that “ordinances” adopted by “Sanctuary Cities” are in fact unconstitutional and that Federal Immigration Law and Arizona State criminal laws supersede “Sanctuary City” ordinances.  Publications that allow writers to fabricate facts, should face the consequences of doing so. Where is the “proof” of the claim this writer is making ,

                                                                        “and ensuring safeguards for protecting civil rights are in place”.

Excuse my language, but what “bullshit”. When you lack the facts, misstate the facts you’ve got. When reason isn’t on your side, “play the race card”.  

Arpaio is under federal investigation on allegations of civil rights allegations, which he denies.

If Arizona’s new law takes effect Thursday, many more of the state’s officers will be asking people to prove they are legally in the U.S. The state law requires officers to ask for a driver’s license, passport or other identity document if they reasonably suspect a person is not allowed to be in the U.S. They must do so while enforcing other laws or ordinances.

Yes, Sheriff Joe has had charges filed against him multiple times over the last 10 years … and Sheriff Joe has been exonerated on each and every claim presented against him  … claims presented by unbiased political groups like the ACLU…  wait a minute, the ACLU isn’t unbiased are they …. Why doesn’t this author identify the accuser by name? After 10 years of “false and unsubstantaited charges” isn’t it about time to refer to the “false and unsubstantiated charges” as false and unsubstantiated charges … This is not about “the law” this is about politics … and failing to enforce the existing laws … about removing and reversing laws passed by Congress and implemented by prior Administrations.

The federal government is trying to block the Arizona law, arguing it usurps its authority. The Justice Department said in its suit challenging the law that the 287(g) federal-local partnerships are one way Congress allowed states to assist in enforcing immigration laws.

Yes, this is what the Obama Administration and the Holder Department of Justice state, however, what the main Stream Media has refused to report is this, the Justice Department issued a memo in 2002 which states the exact opposite…

That 2002 DOJ memo states, “We summarize our conclusions: 1) States have inherent power, subject to Federal preemption, to make arrests for violation of Federal Law. 2). Because it is ordinarily unreasonable to assume that Congress intended to deprive the Federal Government of whatever assistance States may provide in indentifying and detaining those who may have violated Federal Law, Federal Statutes should be presumed not to have preempted this authority. This Office’s 1996 advice that Federal Law precludes State Police from arresting aliens on the basis of civil deportability was mistaken. 3). Section 1252 C does not preempt state authority to arrest for Federal violation”

2002 DOJ Memo

 https://mcauleysworld.wordpress.com/2010/07/09/the-immigration-debate-law-suit-against-arizona-04232002-doj-memo-states-that-federal-law-does-not-preempt-the-states-from-making-arrests-for-civil-and-criminal-violations-of-federal-immigration/

“At the pragmatic level, if local police are already allowed to do this and are allowed to do this with federal cooperation with the state, then why do they need the (new Arizona) law?” said Muzaffar Chishti, director of the New York office of the Migration Policy Institute, an immigration think tank.

There are several other ways local officials can assist, including Secure Communities, a more widely used program that allows local officials to check the fingerprints of anyone they book into their jails against FBI and Homeland Security Department databases.

Lets try not to get stupid in this discussion. A suspect needs to be “placed under arrest” before they can be “booked and finger printed”.  Once a suspect is “arrested and booked” State Law Enforcemnet officers can then access the “Secure Communities Database”.  

The Arizona Law addresses the activities undertaken prior to “arrest and booking” … the activities associated with a “preliminary investigation” … the investigation prior to contacting ICE or other immigration authorities … the basics of the investigation … asking a criminal suspect, under investigation for the commission of a crime, to identify themselves … got it … it really isn’t that difficult … If you can’t identify the “suspect” or complete a basic criminal investigation, how do you ever get to the point of an arrest, finger printing and the utilization of the Secure Communities data base … gee, I guess Congree intended for the Feds to set up the Secure Communities data base – just so long as no state or local police used it … 

But the 287(g) program gives officers the most direct authority to stop people on the street, in their cars or in their communities and check whether they are in the country illegally. Federal watchdogs have been critical of the job the Homeland Security Department has been doing in running the program…

This claim is what I would call a bald face lie … that is as direct a condemnation as I can make … this statement is a bald face lie. The following is taken directly from the Department of Homeland Securities Web Page:

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), effective September 30, 1996, added Section 287(g), performance of immigration officer functions by state officers and employees, to the Immigration and Nationality Act (INA). This authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions

http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm

The Arizona Law addresses criminal investigations prior to the determination that an immigration violation has taken place and applies to all law enforcement officers in the State not a samll group of “designated officers”. A States right to investigate and arrest is not dependent on the delegation of authority from the Federal Government … so says the United States Supreme Court. The State cannot, however, “remove” or “deport”… 

I love how the Government, the ACLU and this AP reporter is arguing that the Arizona Law both usurps Federal Authority and that the Law isn’t needed because 287G already grants the powers requested …  can’t have it both ways can you … that the law interferes with Federal powers and that the law isn’t needed because the Feds have already given the power away …

The department’s inspector general (287G) reported in March that the 287(g) program was poorly supervised and provided insufficient training to officers, including on civil rights law.

Local officers have operated outside their agreements dictating the limits of their authority, the report said. In all, the inspector general made 33 recommendations for overhauling the program, some of which have not yet been resolved. It was the second critical report for the program. The Government Accountability Office had criticized the program in July 2009.

Complaints about Arpaio’s immigration enforcement tactics led the federal government last October to yank his authority to enforce immigration laws during patrols. That month, the Obama administration rewrote all agreements with local partners in attempt to address complaints of racial profiling and civil rights violations.

Yes, this is accurate, as far as it goes. The “287G Program” was in operation for over 13 years before the Obama Administration unilaterally decided to rewrite it’s provisions, to “rewrite” the programs guidelines, something that should have been left to Congress. Is there really any need to point out that the Obama Administration looks at this issue in a manner completely divorced from the rest of the Country … that the Obama Adminstration is on the extereme left and is ignoring American’s “mainstream” on many of these issues; “trying terrorist suspects in New York Courts rather that Military Tribunals, releasing New Black Panthers guilty of voter intimidation, renaming terror attacks as “man caused events” , claiming that the “Boston Police acted stupidly” … and now … even before they read the Arizona Law, claiming that it profiled.

Yes, the Federal Government acted, based on unsubstantiated complaints from groups like the ACLU. The fact is this … the Executive Branch is trying to block enforcement of our immigration laws, laws passed by Congress … the Obama Adminstration is trying to establish a “de-facto” open borders …. see below

WHEN THE UNITED STATES CONSTITUTION STATES THAT IMMIGRATION LAWS ARE RESERVED FOR THE FEDERAL GOVERNMENT – IT IS REFERING TO CONGRESS – NOT THE EXECUTIVE BRANCH … THE COURTS HAVE ALWAYS BEEN INSTRUCTED TO LOOK TO THE INTENT OF CONGRESS – NOT THE POLITICAL WHIM OF THE EXECUTIVE BRANCH …

Even so, the federal government continues to allow the sheriff and deputies to check their jails for deportable inmates.

Allows? Allows? The Federal Government is required to do so … by acts of Congress … This is, simply, the Federal Government’s Job… when the Fedral Government fulfuills this OBLIGATION … it is simply doing it’s job. 

First there is the Secure Communities Initiative discussed above. Then there is NSEERS (National Security Entry-Exit Registration) a system established by Congress in compliance with the findings of the 911 Commission Report. The NEERS System is a system for registration of certain non-citizens within the United States, initiated in September 2002 as part of the War on Terrorism. This system has two separate portions: port-of-entry registration and domestic registration. In each case, the registree is required to be fingerprinted, photographed, and interrogated. In addition, they are required to provide detailed information about their plans and updates to the US Immigration and Customs Enforcement (ICE) in case of changes in plans. They are also able to travel to and from the US via certain ports only.

The NEERS system is used to communicate with State and Local Law Enforcement officals as the conduct their daily activities  … much like the Secure Communities Initiative … http://en.wikipedia.org/wiki/Special_Registration

Then there is the LESC Program, the Law Enforcement Support Center (LESC) is a national enforcement operations facility administered by U.S. Immigration and Customs Enforcement (ICE), the largest investigative agency in the Department of Homeland Security (DHS). LESC is a single national point of contact that provides timely customs information and immigration status and identity information and real-time assistance to local, state and federal law enforcement agencies on aliens suspected, arrested or convicted of criminal activity. Located in Williston, Vt., LESC operates 24 hours a day, 7 days a week, 365 days a year. The primary users of LESC are state and local law enforcement officers seeking information about aliens encountered in the course of their daily enforcement activities. LESC also receives queries from federal, state and local correctional and court systems seeking information about individuals in custody or encountered elsewhere in the criminal justice system. Law enforcement officers have immediate access to alien records entered with the National Crime Information Center (NCIC) and immigration information from every alien file maintained by DHS— approximately 100 million records—by using the formatted Immigration Alien Query (IAQ) screen incorporated within each state’s law enforcement communications system.  LESC offers other vital services, including: National Crime Information Center (NCIC)—LESC administers and controls all ICE criminal and administrative records in this nationwide law enforcement consortium and criminal database. There are now over 250,000 ICE records in NCIC.

http://www.ice.gov/pi/news/factsheets/lesc.htm

Even so, the federal government continues to allow the sheriff and deputies to check their jails for deportable inmates.

I think not, the Obama Executive Branch has been “instructed by Congress” to do so … prior “Executive Branches” accepted and received the Congressional funding to do so and prior to the arrival of the Obama Administration and this “Executive Branch” the Federal Government has acknowledged the powers both inherent in the States and those additional powers granted to the States by Congress, not the Executive Branch, to assist in the enforcement of our immigration laws.

Consider these words spoken by a former Attorney General, John Ashcroft when he attended the opening of the   NSEERS system, the Attorney General  announced the unequivocal conclusion of the Department of Justice’s Office of Legal Counsel (DOJOLC): “Arresting aliens who have violated criminal provisions of [the INA] or civil provisions that render an alien deportable . . . is within the inherent authority of the states.”

https://mcauleysworld.wordpress.com/2010/07/08/obama-administration-uses-suit-by-holders-doj-against-arizona-to-undo-security-protocols-implemented-by-911-commission/

Joanne Lin, legislative counsel for the American Civil Liberties Union, said it is alarming that one Arizona county is responsible for a disproportionate share of deportations.

After referring indirectly to the ACLU 4 times in this article, the author has finally mentioned them by name … why is it alarming Joanne … you might consider that more illegal aliens cross through Maricopa County than any other County in the Country … A fact confirmed by the DHS and DHS Secretary Napolitano. If you have 500,000 illegal aliens cross through a County, I’m sure the law enforcement officers and citizens of Arizona are disappointed to only have 26,000 of them “intercepted”, “apprehended” and “removed”.   The 26,000 represents only 5% of those who gain entry “illegally” to our Country through that County.

By the way Lin, I love your (the ACLU’s) new commercial. You know the one where a man falsely claims the Arizona Law will allow police to harass him while he is gardening … Lin as an Attorney you are required to abide by the “Code of Conduct” … this commercial is a blatant violation of the Code of Conduct Lin, an intentional misrepresentation of a law …

The Los Angeles County’s Sheriff’s Office, a distant second to Maricopa, helped find 13,784 immigrants who were later deported or left the country. The Sheriff’s Office’s agreement with the federal government allows it to check its jails for deportable immigrants, but not to enforce immigration laws during street patrols. A renewal of the agreement is under negotiation.

Yet another bald faced lie. The City of Los Angeles is a “Sanctuary City” and prohibits it officers, illegally and unconstitutionally prohibits its law enforcement officers, from enforcing Federal immigration laws … the City of Los Angeles does this despite the fact that the City is inundated with violent street gangs populated with illegal alien members of the Mexican Drug Cartels,  gangs such as MS-13, Sureno-13,  … 2 prisoners out of every  5 prisoners in the California penal or jail system, are criminal illegal aliens …

An estimated 10.8 million people, about 26 percent of the state’s population, are living illegally in California, compared with 460,000, about 12 percent, in Arizona.

And the point is? I believe the point is that with an estimated 10.8 million illegal aliens living in California … 26 percent of the State population … it is high time we secure the Country’s borders … and that until California secures its borders and addresses the illegal immigration issue seriously … that all Federal Funds … not just bailout funds … be withheld …  and another 460,000 illegals are reported to be living  in Arizona, yet it is reported, by the Obama Administration that there are only 12 million illegal aliens living in the entire United States… what about Florida, where 1 million illegal aliens reside … and then we would only have an 47 additional states to addd to the count … just as a quick count 10.8 million in California and 460,000 in Arizona equals 11.4 million out of the Obama Administration’s estimated 12 million …

“These statistics bear out that you have rogue sheriffs in certain counties that are bent on targeting immigrants,” Lin said.

Illegal immigrants Lin, dear, illegal immigrants … can’t you tell the difference. Well if you can’t tell the difference Lin, the Federal Immigration Judges have no problem doing so … the problem Lin, is with the authorities in crime ridden LA County, with an estimated 10.8 million illegal aliens, only identifying  13, 784 for “removal” out of the state wide pool of pool of 10,800,000, or the 2.5 million illegals living in the L.A. Tri-County Area. The 13,784  represents an apprehension rate of   6 hundereths of 1% (.006). I’ll suggest that any Sheriff’s Department in the Country can match that “apprehension rate” by sitting in their office eating eating donuts and waiting for the “suspects” to walk in and voluntarily surrender …

Since the merger of L.A. Public Safety with the L.A. Sheriff’s Department, the combined groups have a total of nearly 9,000 police officers, and this number does not include civilian employees or private “security” personal. A total of approximately 9,000 officers to patrol roughly 7.600 square miles and they apprehended 13, 784 illegal aliens over a 52 week period. That works out to 1.5 illegal alien arrests per officer over the 52 week year span. 1.5 per officcer per year. Did all that work cause the L.A. Sheriff’s to break into a sweat … No wonder Calfornia has 10,800,000 million illegals …

http://en.wikipedia.org/wiki/Los_Angeles_County_Sheriff’s_Department

http://en.wikipedia.org/wiki/Los_Angeles_County_Office_of_Public_Safety

Maricopa County has a total of 4,000 employees and an additional 3,00o volunteer posse members. The County has approximately 3,000 full time Sheriffs, roughly 1/3 of the number employed in L.A. County. The Sheriff’s office “patrols” 9200 hundred square miles. an area rughly the size of the state of Vermont or New Hampshire or New Jersey…. an area 1 1/3 times larger than L.A. County. The Maricopa County Sheriff’s apprehended 26,146 “illegal aliens” in the year in question, for an average of 8.7 per Sheriff for the year … about one apprehension per officer every 6 weeks … not bad considering it isn’t their primary focus …. but this AP writer would have you think what?  That the Maricopa County Sheriff is out there arresting dozens of Hispanics at the local Dairy Queen … yeah, 8.7 apprehensions per year per Sheriff – about 1 every 6 weeks per Sheriff … sounds like a lot of profiling going on to me …  I guess we can tell one thing … The Maricopa County Sheriff is out their working … Do the L.A. County Sheriffs even leave their offices … 1.5 apprehensions per officer per year … 

One thing is certain from these stats … the L.A. County Sheriff is not checking to determine if those arrested are , in fact, here illegally. With 10.800.000 illegal aliens living in California  and a total of 136,288 criminal arrests in 2009 (19,168 Part 1 arrests and 117,120 Part 2 arrests) the L.A. County Sheriff’s office only identified 13,784 illegals, one for every 10 individuals arrested. I for one don’t beleive that any “racial group” is more prone to crime, however, those who are willing to commit a crime to get here may, in fact, be more willing to commit a crime after they arrive. Even if that is not the case, lets just assume that illegal aliens are just as likely as any other “group” in California to commit a crime and be arrested … I’m not willing to believe illegal aliens are more “law abiding” … if this is a fair assumtpion then at least 1/4 of those arrested in L.A, County would be illegal … the same percentage that they represent in California’s population at large …. (I’m not even arguing that the rate should be much higher becasue L.A. County has so many more illegals) … 25% of 136,288  equals 34,072 a tad more than 13,784 that were apprehended … nearly 3 times more …. and nearly 1.5 times more than the number apprehended by Sheriff Joe and his group in Maricopa County … These stats don’t support the slightest hint of profiling … they clearly state what is happening, the L.A. County Sheriff’s department is not enfoircing the immigration law, by choice or by directive  

http://app1.lasd.org/caas_web/era01/index.cfm?mod=mnu&cur_year=2009&locat=dep_all  

http://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_area

 http://www.mcso.org/index.php?a=GetModule&mn=Messages

Yes, Lin the problem is obvious and the problem is not in Arizona … Watch the election in November Lin, American is going to send you a loud message …

http://dailycaller.com/2010/07/28/arizona-helped-deport-thousands-without-new-law/

Post Script:

The AP is such a critical part of the 5th estate, a leader in worldwide reporting, an organization with writers risking their lives in places like Afghanistan, Iraq and yes, in Mexico where they report on the Mexican Civil War with the Drug Cartels… why does the AP allow shoddy pieces like the dribble above be published and detract from the hard won reputation garnered through the efforts of  so many other serious reporters …  won by the hard work of true journalists … AP lose your “political hacks” they diminish the reputation of your true journalists …

SEE: https://mcauleysworld.wordpress.com/2010/07/28/caretl-vilence-4-journalists-missing-in-durango-mexcio-human-rights-commission-issues-call-to-mexican-government/

The Immigration Debate: Judge hears arguments on Arizona immigration law today

A federal judge will hear arguments Thursday from lawyers for the governor, the federal government and civil rights groups over whether Arizona’s new immigration law should take effect in a week.

U.S. District Judge Susan Bolton will consider a request by the U.S. Justice Department to block enforcement of

Cartel Killers leave 5 heads on disco floor

the law. She also will hear arguments in a challenge by civil rights groups over whether the law should be put on hold and whether that lawsuit should be thrown out of court.

The judge has said she wasn’t making any promises on whether she would make those rulings before the law takes effect on July 29.

http://www.forbes.com/feeds/ap/2010/07/22/general-mobile-telecommunications-us-immigration-arizona-lawsuits_7787657.html?boxes=techchannelAP

The Immigration Debate: DOJ Lawsuit Against Arizona – The “Cliff Notes” Post

The Immigration Debate – DOJ Files Suit Against Arizona – Bullet Points & Legal Cites – Your “Cliff Notes” On The Arizona Suit

I’m including “links” to shorten your verification process ….

 1) DOJ suit against State of Arizona: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

The suit’s 3 causes of action are listed on pages 23 & 24 of the 25 page suit.    

2). DOJ memo 04/23/2002 refuting all three causes of action listed in the current DOJ suit. http://www.aclu.org/files/FilesPDFs/ACF27DA.pdf

 3) I’ve cobbled together several “law review” articles and the legal sites to a dozen of the relevant case decisions here: https://mcauleysworld.wordpress.com/2010/07/09/the-immigration-debate-04232002-doj-memo-directly-contradicts-basis-of-obama-lawsuit-against-arizona/

 I have a very different take on how this debate is being “defined” and that the issue of “framing” the debate is still being controlled by the media and the fact that the media is so very slanted in its reporting on this matter.

 A). Arizona’s new law isn’t an “Immigration Law” at all – it is a “law enforcement statute”. – The Arizona statute does not set a single quota or define a single crieria for admitting a foreign national to the United States – the “true” subject matter of Immigration Law.

 B) The Arizona Law is administrative in nature as is described in several of the Federal Court Opinions sited in my blog article..

 C). Arizona is not moving to change Federal Immigration Law – Arizona’s intent is to enforce existing federal law ….

 D). The party moving to “change” this Nation’s laws, through a drastic reinterpretation of existing Federal statutes, is the Plaintiff or the Executive Branch, specifically Obama’s DOJ and AG Holder.

 The 04/23/2002 DOJ memo indicates that post 09/11/2001 the Federal Government waived any claim to preemption or supremacy when it came to the concurrent enforcement of our immigration laws. Congress specifically expanded the role played by state law enforcement post 9/11. Congress has had 8 years to act on the memo or to revise the Statutes it passed after 9/11 and has not done so  …

 The memo was routinely criticized by the ACLU and the rest of the far left when it was first issued in April 2002, however, no Congressional action was taken to address the pronouncements of the far left or to amend the statutes upon which the 04/23/2002 memo is based …. today, the Holder DOJ simply wants to ignore the 04/23/2002 memo and its holdings and to reverse a long standing policy of the United States Government …..

 Once waived by the Executive Branch, “preemption” and or “supremacy” must be reclaimed by Congress …. not the Executive Branch ….

The Immigration Debate: Obama’s Justice Department to Challenge Arizona Immigration Law – Obama’s Imperial Presidency

The Immigration Debate: Obama’s Imperial Presidency – Obama’s Justice Department to Challenge Arizona JAMES MADISON Immigration LawFor a detailed review of Arizona’s immigration law and the history of America’s immigration laws see: https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/

Obama’s Justice Department has confirmed that it will file a legal challenge to Arizona’s Immigration law. A detailed review of the law can be found at the above site.

As this writer has stated in previous posts, the Administration’s challenge will fail.

THOMAS JEFFERSON

The purpose of this post is not to review the constitutionality of the Arizona law; however, I will briefly state the three reasons the Arizona law will be found to be Constitutional.

1). The Arizona law does not violate the 14th Amendment of the Constitution as it does not violate any individual’s rights to “equal protection” under the law. The Arizona Law specifically prohibits racial profiling. The law does not allow for any law enforcement officer to “stop or detain” an individual and ask for their identification. The law instructs law enforcement officers to question a “suspect” under investigation for the violation of some crime, other than an immigration crime, about their immigration status, if the suspect cannot produce identification during questioning. The law lists 11 different types of identification that will create a presumption of legal citizenship or legal residency.

http://en.wikipedia.org/wiki/Equal_Protection_Clause                                                          

http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.htm

2). The law does not violate Article 6 of the Constitution as it does not violate the Federal Government’ s right to legislate the country’s

BEN FRANKLYN

 immigration laws. The Arizona law does not “usurp” the Federal Government’s right to set immigration quotas or to issue immigration documents. The Federal Government has the exclusive right to determine how many immigrants will enter the Country every year and how many immigrants will be granted citizenship every year. The Federal Government has the exclusive right to set specific requirements for those seeking citizenship and criteria for “deporting” those who have entered the Country. The Arizona Law does not usurp any power preserved for the exclusive use of the Federal Government.

The Arizona law notes that Arizona Law enforcement officers have “concurrent jurisdiction and responsibility” with Federal Law Enforcement Officials for enforcing Federal Immigration law, something noted in the Federal Immigration statutes. Specifically, the Arizona law mandates that all Arizona State Law Enforcement officers comply with the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the last “comprehensive immigration law” passed by the U.S. Congress. The Arizona law does not usurp the Federal Government’s rights; the Arizona Law mandates state compliance with the statutes passed by the Federal Government.

I will briefly note here, that Article 6 of the Constitution reserves certain rights to the Federal Government. Article 6 reserves those rights for all three branches of the Federal Government; The Executive, the Legislative and the Judicial. The Obama Administration’s current actions are an attempt to usurp the constitutional powers granted to the legislative and judicial branches of our government. The Obama Administration believes in an “Imperial Presidency” rather than a “Constitutional Republic”.   http://en.wikipedia.org/wiki/Supremacy_Clause                                                                http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.htm       

3). When the Courts review the constitutionality of any given law, the determination of constitutionality is not based on the possibility that some individual may commit an act of “misfeasance”. 

THE DEATH OF GENERAL WARREN AT BUNKER HILL

Misfeasance is defined as: a). a wrong, actual or alleged, arising from or consisting of affirmative action. b). the wrongful performance of a normally lawful act; the wrongful and injurious exercise of lawful authority. http://dictionary.reference.com/browse/misfeasance

 Unconstitutional is defined as: unauthorized by or inconsistent with the constitution. http://dictionary.reference.com/browse/unconstitutional 

 Example: The speed limit in front of my home is 25 miles per hour. There is nothing “unconstitutional” about that law or setting a 25 mile an hour speed limit. If a law enforcement officer pulls over a black driver, because they are black and not because they were speeding, that officer has committed an act of racial profiling. Racial profiling is an act of malfeasance which is punishable in both the criminal and civil courts, however, the speed limit law is constitutional and there is no question that the speed limit law is constitutional. None!

Multiple sections of the Arizona Law prohibit racial profiling.  The Arizona Law is Constitutional. If any Arizona Law Enforcement Officer commits an act of “racial profiling” today, under either the new law or other existing Arizona Laws, that officer is guilty of “malfeasance” and has committed both a civil and criminal offense. Racial profiling is illegal in Arizona today, the new Arizona Law does not change that fact, and it confirms it. https://mcauleysworld.wordpress.com/2010/05/25/the-immigration-debate-mr-president-apologize-to-the-state-of-arizona-misfeasance-is-not-unconstitutional-obama-race-baiter-in-chief/

Obama’s Imperial Presidency

The Obama Administration knows the Arizona Law to be Constitutional.

The Obama Administration’s challenge to the law is, however, rooted in a significant constitutional question. The Obama Administration is attempting to subvert our Constitution and create an Imperial Presidency.

Imperial Presidency vs. Constitutional Republic

The United States is a Constitutional Republic. A Republic is defined as “a state in which the supreme power rests in the body of citizens entitled to vote and is exercised by representatives chosen directly or indirectly by them.” http://dictionary.reference.com/browse/Republic  

BOSTON TEA APRTY

In our Constitutional Republic we select our representatives and they govern with our consent. In our Constitutional Republic our Federal Government is divided into three equal branches, Executive, Legislative and the Judiciary. Each of the branches has its own rights and its own duties or responsibilities. The first such responsibility, a “duty” shared by every member of every branch of our Government, is the “duty” to “protect and defend our Constitution”. Our Constitution also states that any right not specifically granted to the Federal Government is reserved for the governments of the individual states.

Imperial is defined as:  like, or pertaining to an empire, emperor or empress. http://dictionary.reference.com/browse/Imperial

An emperor is defined as the male sovereign or supreme ruler of an empire: as in the emperors of Rome. http://dictionary.reference.com/browse/Emperor

Emperors were autocratic rulers: An autocracy is a form of government in which one person possesses unlimited power.  An autocrat is a person (as in an Emperor) ruling with unlimited authority. http://en.wikipedia.org/wiki/Autocracy

A single ruler with unlimited power and unlimited authority. Power and authority taken from the people not granted by the people.

Under Imperial Rule all rights and civil liberties belong to the Emperor. Our Republic is founded on the belief that basic rights belong to the citizens of the Republic and are “inalienable”: that these basic rights cannot be transferred to someone else or taken away by the Government.  

CIVIL WAR - PICKETT'S CHARGE AT GETTYSBERG

Obama’s Attempt to Circumvent the Constitution and Create an Imperial Presidency

Under our Constitutional Republic the right to create and pass laws rests with the Legislative Branches. Our Supreme Court has ruled that the U.S. Congress has the exclusive right to pass laws that establish immigration quotas or limits and that all “immigration quotas and limitations” established by Congress are binding upon the Executive Branch and the individual states. The Supreme Court has also ruled that the individual states have “concurrent jurisdiction” to enforce our Federal immigration laws. To enforce the Federal immigration laws, not to rewrite them. The Arizona law does not attempt to rewrite the laws passed by Congress, in fact, the Arizona law calls for the enforcement of the 1996 Federal Immigration Law – Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

President Obama and various members of the Obama Administration believe in the concept of “open borders”. The

 Obama Administration supports an “amnesty” for illegal aliens.

WORLD WAR I DOUGH BOYS

An “open borders policy” means the elimination of immigration quotas. Under an “open borders policy”: any migrant, from any country, would be free to enter and live in the United States once they crossed our border.

This post will not debate whether we should adopt an “open border policy” or grant yet an additional “amnesty”, the third “amnesty” in the last 30 years, before we secure our borders.

This post will note the Obama Administration’s attempt to usurp power granted constitutionally to the Legislative and Judicial branches and create an Imperial Presidency.

When the Obama Administration states that they want “comprehensive immigration reform” the Administration means they want an “open borders policy” with an “amnesty” for those currently within our borders illegally.

The overwhelming majority of American people are diametrically opposed to such a “open border policy” or the implementation of an additional “amnesty”.

Under our Constitutional Republic, implementing such a change in our “existing laws” would need to be initiated by our Congress not the Obama Administration or the Executive Branch. 

A proposal to adopt either an “open borders policy” or an “amnesty program” would be soundly defeated in both Houses of the U.S. Congress.

The Obama Administration wants to implement two immigration policies but lacks the Constitutional power to do so, two policies strongly opposed by the legislative branch and a majority of Americans.

Prevented constitutionally from unilaterally implementing these changes the Obama Administration has adopted policies and ignored existing laws in the Administration’s attempt to implement a “de facto” open border and amnesty program.  (“de facto”: actually existing, without lawful authority).  http://dictionary.reference.com/browse/de+facto )  

The Obama Administration is refusing to enforce our existing immigration laws. The Administration is willfully failing to secure our borders. The Administration is refusing to send appropriate resources to secure our borders and has even failed to deploy the 1200 National Guard Troops promised to our Border States. In adopting these actions the Obama Administration has moved to usurp (to use without authority or right) powers granted to the Congress under the Constitution. The Obama Administration cannot get an “amnesty program” or an “open borders policy” passed through Congress as the Constitution requires, so the Obama Administration is adopting extra constitutional (not authorized by or based on a constitution; beyond the provisions of a constitution) measures to achieve policies it cannot obtain constitutionally.  http://dictionary.reference.com/browse/extraconstitutional 

WORLD WAR II - D DAY: GI JOES OMAHA BEACH

The Obama Administration must challenge the Arizona Law, not because the Administration believes the law to be unconstitutional, but because the Administration fears that other States will pass similar laws. The Obama Administration must challenge the Arizona law because the Obama Administrations’ attempts to implement “de facto” amnesty and open borders policies will be thwarted by the States when the States move to enforce the laws passed constitutionally by Congress.

The Obama Administration views itself as an Imperial

OPEN BORDERS - AMNESTY

 Presidency – with President Obama as the omnipotent autocrat – possessing unlimited power, unlimited authority and unrestrained by Constitutional limitations. An autocrat free to ignore his oath to “protect and defend the constitution”, free to selectively enforce or ignore the laws of the land as he chooses, free to implement his policies without the advise or consent of the Congress or the American people.

Prologue:

Ancient Rome started as a Republic.  Like the United States, the Roman Republic was founded after the overthrow of a monarchy. The Roman Republic was based on a Constitution which honored the principles of separation of powers, of a need for a system of checks and balances within the Government.   http://en.wikipedia.org/wiki/Roman_Republic

The end of the Roman Republic was brought about by the Roman leaders who “transitioned” Rome, leaders who “fundamentally transformed” Rome from a Republic to an Imperial State. A state ruled by autocratic Emperors. The Emperors were men who subverted the Roman Constitution for their own power, for their own political gain. The Emperor’s usurped the powers granted to the Roman Senate and Legislative Assembly and after consolidating their power proclaimed themselves perpetual dictators (Julius Caesar http://en.wikipedia.org/wiki/Roman_Republic ),  Supreme Majesty (Augustus ), Imperator Caesar Maximus Naughtius Pretentious Stroppius Homosexius Nero Augustus (Nero,  http://uncyclopedia.wikia.com/wiki/Nero ) and Caligula (Gaius Julius Caesar Augustus Germanicus, http://www.roman-emperors.org/nero.htm).

THE KOREAN WAR - MARINES LANDING AT INCHON

Dictator: a person exercising absolute power, a ruler who has absolute, unrestricted control in a government. http://dictionary.reference.com/browse/dictator

My generation was very familiar with a saying (it is actually a book title), “The Rise and Fall of the Roman Empire”. Rome rose as a Republic and Rome fell because it was “fundamentally transformed” into an autocratic Empire ruled by despots. Despot: a king or other ruler with absolute, unlimited power; autocrat. any tyrant or oppressor. http://dictionary.reference.com/browse/despot

It is ironic that America’s coming battle, a battle that will determine whether the Country will remain a Constitutional Republic or be “fundamentally transformed” into an Imperial Presidency, will be fought over the issue of illegal immigration, most particularly, illegal immigration into the State of Arizona. The President’s true objective, an extra constitutional usurpation of powers granted to Congress, is being disguised as a phony “civil rights issue”.  A false issue the President is exploiting to garner political support among his Hispanic and far left base. The President is guilty of “race baiting” as he moves to esatblish his Imperial Presidency. http://www.ask.com/bar?q=race+baiting&page=1&qsrc=2891&dm=all&ab=2&u=http%3A%2F%2Fwww.washingtontimes.com%2Fnews%2F2010%2Fmay%2F03%2Fobamas-race-baiting%2F&sg=aqQrV3cX93bwZwf8zn%2BMF2wfMlOuCjIOuGwZHEDm8Vk%3D&tsp=1277047957762The Hispanic portion of his base has very close ties to our southern neighbor, Mexico.

Mexico, the Country that twice had to fight to escape from the despotic rule of Emperors. (In 1821 when Mexico declared independence from Spain (Mexican Independence Day) and in 1867 at the end of The Second Mexican Empire). 
Mexico fought again, for a third time, to free the Country from another autocratic ruler (Porfirio Diaz) during the Mexican Revolution (1910 – 1920: http://en.wikipedia.org/wiki/Mexican_Revolution ).

VIETNAM - INSERTION INTO HOT LZ

How can the Country of Mexico, a Country that has tasted the violence of autocratic rule 3 times in the last 150 years and fought its Revolution less than 100 years ago, support or applaud the “fundamental transformation” of America into that which they, the Mexican people, want to flee. Mexico has rejected Imperial rule three times, yet Mexico would support the “fundamental transformation” of the America Republic into an Imperial Presidency.                                       

Is the purpose of coming to America rooted in a desire to share in the American Dream, to embrace the Republic for which it stands or is the goal to “fundamentally transform” America, transform the Republic into another Empire, an Empire ruled by an Imperial Presidency, an Imperial Presidency where one man or woman rules with unlimited authority and unlimited power.

Remember these two things: 1). There has never been a “compassionate dictator” or “despot”, and 2). Dictators are neither liberal nor conservative; they are first and always, dictators.

F15E IRAQ 1991

The Immigration Debate; The Arizona Law & Its Place In The History Of American Immigration Laws

Enough already with the race baiting from the left …..

Arizona’s new law is neither unconstitutional nor does Arizona’s new law call for racial profiling.

For a discussion of Arizona’s new “immigration law” see  https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/     or https://mcauleysworld.wordpress.com/2010/05/14/el-debate-de-inmigracion-la-ley-de-arizona-hechos-de-la-ficcion-%c2%bfesta-cansado-de-que-nos-mientan/ 

THE CURRENT POLITICAL SPIN

The left is trying to create a poltical advantage and distract the American public from the real issues of unemployment a faltering economy and rising crime rates with fabricated claims of racism in the new Arizona law, a law which is incorrectly being called an “immigration law” when in fact the law focuses on the prevention of criminal acts and the enforcement of exisiting criminal laws. See: https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/     or  https://mcauleysworld.wordpress.com/2010/05/14/el-debate-de-inmigracion-la-ley-de-arizona-hechos-de-la-ficcion-%c2%bfesta-cansado-de-que-nos-mientan/ 

The race baiters are not interested in uniting our neighborhoods, healing our wounds or bringing people together, for making our Country a safer place for all, for bringing an end to the illegal drug smuggling or sexual trafficking trade, for ending 21st century slavery ……. they are hoping to bring destruction, to destroy communities and to divide the people for their own personal gain.  

Earliest History of America’s Immigration Laws

The United States Constitution was adopted in 1789. Congress adopted the first “immigration law” one year later in 1790 when it granted citizenship to the first “immigrants”. Subsequent legislation passed in the 1790’s required prospective citizens to renounce or give up former allegiances to other “Sovereign Nations” and to surrender titles of nobility granted by foreign monarchs prior to being granted citizenship in our great country. 

In 1798 Congress authorized the President to expel “dangerous” aliens in the Alien Friends Act and the Alien Enemies Act. 

The Naturalization Act of 1802 expanded the provisions of the 1795 law and created a “five-year legal residency requirement” prior to granting an immigrant citizenship. Then in 1808, Congress enacted a law forbidding the importation of slaves.

No official immigration records were kept until 1820, but it is estimated that 250,000 immigrants, 1/4 of a million people, arrived in the United States between 1790 and 1820 – the 1st 30 years of the Constitutionally governed United States. It is estimateed that an additional 10 million immigrants came to American between 1820 and 1875 when the US passed its first “restrictive” immigration law.

A total of 10 million 250 thousand people “immigrated” to the United States between 1790 and 1875. The first “restrictive immigration law” in 1875 excluded “convicts” and “prostitutes”, the 1st classes of individuals to be denied “lawful entry” into the United States. Those same “class” restrictions continue to this day. 

In 1903 the United States added “anarchists” to the list of those to be “denied entry” into the United States. An anarchist is someone who who seeks to overturn, by violence, all constituted forms and institutions of society and government, with no purpose of establishing any other system of order in the place of that destroyed. http://dictionary.reference.com/browse/anarchists

In 1918 Congress expanded this exclusion when it enacted the “Anarchist Act” which expanded the definition of those to be denied entry to include,  “a person who promotes disorder or excites revolt against any established rule, law, or custom.”. The Act of 1918 did not only deny admission to the United States but also provided a basis to deport “anarchists” out of the Country.

The Act specifically identified the following people

            (a) aliens who are anarchists;

(b) aliens who advise, advocate, or teach, or who are members of, or affiliated with, any organization, society, or group, that advises, advocates, or teaches opposition to all organized government;
(c) aliens who believe in, advise, advocate, or teach, or who are members of, or affiliated with, any organization, association, society, or group, that believes in, advises, advocates, or teaches:

(1) the overthrow by force or violence of the Government of the United States or of all forms of law, or
(2) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers, either of specific individuals or of officers generally, of the Government of the United States or of any other organized government, because of his or their official character, or
(3) the unlawful damage, injury, or destruction of property, or
(4) sabotage;
(d) aliens who write, publish, or cause to be written or published, or who knowingly circulate, distribute, print, or display, or knowingly cause to be circulated, distributed, printed, or displayed, or knowingly have in their possession for the purpose of circulation, distribution, publication, or display any written or printed matter, advising, advocating, or teaching opposition to all government, or advising, advocating, or teaching:

(1) the ovethrow by force or violence of the Government of the United States or of all forms of law, or
(2) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers of the Government of the United States or of any other government, or
(3) the unlawful damage, injury, or destruction of property, or
(4) sabotage;
(e) aliens who are members of, or affiliated with, any organization, association, society, or group, that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, or display, any written or printed matter of the character in subdivision (d).  http://en.wikipedia.org/wiki/Anarchist_Exclusion_Act

Limits on Immigration- Immigration Quotas – The 1920’s

In the 1920’s Congress implemented the first numerical controls on immigration. Enacted first, as a temporary measure, the 1921 Quota Law marked a major shift in the U.S. approach to immigration control. The law limited immigration from each foreign nation to 3% of the number of foreign-born persons of that nationality residing in the U.S. as of the 1910 census.

The total quota for the Country was 357,000 new immigrants per year.

In 1924, Congress further restricted immigration by reducing the immigration quota from 3% of foreign-born persons under the 1910 census to 2% of the foreign-born under the 1890 census. This change cut the total quota of new immigrants per year to 164,667.

During the 1930’s and the “Great Depression” more people emigrated out of (left) the United States than “immigrated” into the Country. In the entire decade of the 1930’s only 500,000 ( 1/2 million) immigrants entered the United States. In the year 1932 only 35,000 (thirty five thousand) immigrants entered the country while 100,000 (one hundred thousand) left or emigrated out of the country.

In the 1940’s the United States negotoated the first of its “temporary worker” programs with Mexico. 

In a 1948  response to problems created by the devastation of Europe in World War II and the Nazi Holocaust, Congress adopted the Displaced Persons Act that allowed for the admission into the U.S. of some 400,000 non-citizens. 

The Sovereign Right To Regulate Immigration

All sovereign nations have the right to regulate immigration.

See: The Human Rights Library of the University of Minnesota: http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html

“The broad power of the federal government to regulate the admission, removal, and naturalization of non-citizens has its roots in the early history of the United States. Modern statutes, Supreme Court decisions, and federal agency regulations attest to the plenary (plenary = unlimited or full) nature of this power.” http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html

THE SOURCE OF THE FEDERAL POWER 

Throughout the history of the United States the Supreme Court has upheld all manner of federal statutes regulating immigration. By contrast, Supreme Court decisions preclude states from passing legislation that directly impinges on this area of federal dominion. The Supreme Court’s basis for action is clear when the area regulated is naturalization. Article 1, § 8, clause 4, of the United States Constitution specifically grants Congress the power to establish a “uniform Rule of Naturalization.” By expressly allocating this power to Congress, the Constitution prevents the confusion that would result if individual states could bestow citizenship. The Constitution does not, however, explicitly provide that the power to deny admission or remove non-citizens rests with the federal government as opposed to state governments. In the early immigration cases the Supreme Court faced the problem of identifying the source of the federal government’s exclusive and plenary power over immigration. Ultimately the Supreme Court found the plenary power to be an inherent sovereign power. http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html

Early cases cite specific constitutional provisions to support the inference that the federal government possesses complete power over international relations, including immigration matters. In addition to citing the foreign commerce power, the Supreme Court in Nishimura Ekiu v. United States (Sup.Ct.1892) cites the power to establish a uniform rule of naturalization; the power to declare war, and to provide and maintain armies and navies; and the power to make all laws necessary and proper. The Fong Yue Ting v. United States (Sup.Ct.1893) case adds the power to define and punish piracies, felonies committed on the high seas, and offenses against the law of nations. http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html

The Migration and Importation Clause in Article I, § 9, clause 1, provides: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight….”. The specific limit on congressional power before 1808 could be construed to imply that after 1808, Congress would have power over migration and importation. http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html

The War Power, found in Article I, § 8, clause 11, is an additional source of federal control over immigration. The War Power gives Congress the authority to “declare war.” The War Power authorized the exclusion and expulsion of enemy aliens. The Supreme Court upheld the constitutionality of such provisions in Ludecke v. Watkins (Sup.Ct.1948).

National Sovereignty

The United States Supreme Court ultimately found the source of the federal power to regulate immigration in a combination of international and constitutional legal principles. The Chinese Exclusion Case (Sup.Ct.1889) was the first case to hold that the federal power to exclude non-citizens is an incident of national sovereignty. The Court reasoned that every national government has the inherent authority to protect the national public interest. Immigration is a matter of vital national concern. Furthermore, it is the role of the federal government to oversee matters of national concern, while it is the province of the states to govern local matters. Therefore, the Court found that the inherent sovereign power to regulate immigration clearly resides in the federal government.

Subsequent cases reinforced national sovereignty as the source of federal power to control immigration and consistently reasserted the plenary and unqualified scope of this power.

Fong Yue Ting v. United States (Sup.Ct.1893) explicitly held that the power to expel or deport (now “remove”) non-citizens rests upon the same ground as the exclusion power and is equally “absolute and unqualified.”

“To be a sovereign nation, a people must have control over its territory. Without such control, a nation would be unable to govern itself and its borders effectively, and as a result, would be subject to the sovereignty of other nations. The power to regulate immigration is therefore inherent in the Constitution’s creation of a sovereign nation.” 

THE SCOPE OF THE FEDERAL POWER

To date there have been no successful challenges to federal legislation that refuses admission to classes of non-citizens or removes resident aliens. Federal immigration power thus appears limitless. Indeed, the Supreme Court has stated: “[O]ver no conceivable subject is the legislative power of Congress more complete.” Fiallo v. Bell (Sup.Ct.1977), Kleindienst v. Mandel, (Sup.Ct.1972), and Oceanic Steam Nav. Co. v. Stranahan (Sup.Ct.1909). Extreme judicial deference bears witness to the truth of this statement.

The United States Constitution & The United Nations Charter

The Constitution and the U.N. Charter have been dismissed as grounds for opposing federal immigration power. The federal courts and immigration authorities have without much consideration rejected an assertion in Hitai v. INS (2d Cir.1965), Vlissidis v. Anadell (7th Cir.1959), and Matter of Laurenzano (BIA 1970) that the immigration quota system is inconsistent with the U.N. Charter. The Supreme Court has upheld the constitutionality of federal statutes that detain non-citizens for the brief period necessary for their removal proceedings (Demore v. Kim (Sup.Ct.2003)) and that exclude non-citizens on the basis of race (Chinese Exclusion Case (1889)) and political belief (Kleindienst v. Mandel (Sup.Ct.1972)). Moreover, excluded non-citizens have no constitutional right to a hearing. Shaughnessy v. Mezei (Sup.Ct.1953). Mezei also determined that excludable non-citizens can be indefinitely detained if their country of origin refuses to accept them.

THE FUNCTIONS OF THE THREE BRANCHES OF THE FEDERAL GOVERNMENT IN REGULATING IMMIGRATION

The plenary and unqualified power of the federal government to regulate immigration, naturalization, and related foreign policy belongs to Congress. The possible international consequences of decisions in this area have made the federal judiciary extremely reluctant to substitute its judgment for the legislature’s. Justice Jackson articulated the Court’s position in Harisiades v. Shaughnessy (Sup.Ct.1952): “[A]ny policy towards aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Subsequent decisions echo this sentiment. Since the judiciary poses no obstacle, Congress has been historically free to “exclude aliens altogether or prescribe the terms and conditions upon which they may enter and stay in this country.” Lapina v. Williams (Sup.Ct.1914).

For example, Congress exercised its plenary authority in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) that facilitated the removal of non-citizens.

The Supreme Court and the Paths To Citizenship

The Fourteenth Amendment “contemplates two sources of citizenship, and two only, birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law.” United States v. Wong Kim Ark (Sup.Ct.1898). As with exclusion and deportation (now “inadmissibility” and “removal”), the Supreme Court has accorded great deference to the naturalization guidelines set by Congress. In United States v. Ginsberg (1917) the Court stated, “An alien who seeks political rights as a member of this nation can rightfully obtain them only upon the terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will….” In cases involving classifications in the naturalization process, the Court has given a near absolute presumption of validity to distinctions drawn by Congress.

Congress has been historically free to “exclude aliens altogether or prescribe the terms and conditions upon which they may enter and stay in this country.” Lapina v. Williams (Sup.Ct.1914).

The Executive Branch and Immigration

As in other areas of the law, the function of executive agencies in the field of immigration is to enforce the legislation passed by Congress. The Executive Branch is not empowered to create Immigration Policy.

A Brief History of 20th Century Immigration Law Reform 

THE 1952 ACT

The Immigration and Nationality Act of 1952 (INA) consolidated previous immigration laws into one coordinated statute. As amended, the 1952 Act provided the foundation for immigration law in effect today.

The 1952 Act retained the national origins quota and established a 150,000 person limit.

Within the quota system, four types of entrance preferences were established. First preference was given to those entrants with skills or experience needed by the U.S. economy. Those persons with close family relations to U.S. citizens or permanent residents received lower preferences.

It should be noted that spouses, children, and parents of U.S. citizens were not and are still not subject to the quota or preference system. For that reason, they are called “immediate relatives.”

Following the passage of the 1952 law a large increase in apprehensions of deportable non-citizens occurred. The Border Patrol, numbering just about 1,000 strong, apprehended 800,000 deportable non-citizens in 1952; in 1954, that number increased to one million.

THE 1965 AMENDMENTS

The 1965 amendments replaced the national origins formula with a limit of 20,000 on each country in the Eastern Hemisphere and an overall limit of 170,000 for that hemisphere. The law established a quota of 120,000 for the Western Hemisphere, without preferences or country limits to take effect in 1968. ( A total of 290,000 new “legal immigrants” were to be allowed per year).

The 1965 amendments abolished the old four-preference system and established in its place a seven-preference system for close relatives and those immigrants with needed occupational skills from the Eastern Hemisphere.

Spouses of U.S. citizens were permitted to immigrate without reference to the quota or preference system.

Under the preference system, unmarried adult children of U.S. citizens received highest preference; second preference was granted to spouses and unmarried children of permanent residents. The preference for immigrants of “exceptional ability” and those in “the professions” was changed from first to third. Other relatives of citizens and permanent residents received the fourth and fifth preferences. Sixth preference was given to needed workers. Seventh preference was allocated to refugees.

THE 1976 AMENDMENT

The 1976 amendment applied the Eastern Hemisphere preference system to the Western Hemisphere, both hemispheres were subject to the 20,000 per country limit and the seven preference system.

THE 1978 AMENDMENT

The 1978 amendment established a world-wide quota of 290,000 and applied the same per country limits and seven preference system to both hemispheres. This worldwide ceiling eliminated the hemisphere consideration and allowed visas to go where the need was greatest.

Illegal Immigration in the 1970’s

The number of deportable non-citizens, which fell in the 1950s, climbed rapidly in the 1960s and 1970s, as did the number of total entries. In 1972, one half million deportable non-citizens were apprehended. By 1977, that annual figure had doubled. The Border Patrol had grown to a force of 2,400.

The Immigration Service estimated that, between undetected border crossings and violations of legal entry conditions, millions of undocumented non-citizens were living in the U.S. in 1974. In 1979 the Border Patrol apprehended one million deportable non-citizens. That year, the INS employed almost 11,000 personnel and had a 300 million dollar budget.

THE 1980 REFUGEE ACT

The Carter Administration asked for special legislation to deal with the issue of the “”Mariel Boat Lift” that delivered 100,000’s of Cubans to the shores of Florida. It later became evident that Fidel Castro, the Communist dictator in Cuba, had emptied his prisons and placed untold number of Cuban criminal felons on the boats with the non-criminal Cubans seeking asylum in the United States. http://en.wikipedia.org/wiki/Mariel_boatlift . The boat lift began on April 1, 1980 and ended in October 1980.

Estimates vary on how many of the incoming immigrants were “undesirables” or former felons. The low estimate placed the number at 7,500 with a high estimate of 40,000 covicted felons. Congress adopted an official estimate of 12,500. Approximately 2700 of the immigrants were denied entry due to their criminal past.

The “boat lift” was depicted in the movie “Scarface”.

THE 1986 IMMIGRATION REFORM AND CONTROL ACT (IRCA) 

In 1980 the United States Census Bureau counted 2,047,000 undocumented non-citizens in the country. Based on the Bureau of Census experience in miscounting other segments of the population, the Bureau had estimated that there were 5,965,000 undocumented persons in the country on census day April 1, 1980. 

The 1986 the Immigration Reform and Control Act (IRCA) dealt with the major problem of undocumented workers by imposing sanctions on employers while it legalized the status of undocumented entrants who had arrived prior to January 1, 1982.

In response to the demand for foreign agricultural labor, IRCA created a program that granted temporary and permanent resident status to qualified agricultural workers.

The IRCA did not substantially restructure the immigration law as it pertains to immigration quotas or the requirements for admission.

Another major goal of IRCA was improvement of enforcement and services. The act increased border patrol as well as other enforcement activities of the INS to deter unlawful entry of aliens into the U.S..

In exchange for the increased enforcement provisions of IRCA, Congress offered a broad amnesty for many undocumented non-citizens already present in the country. The one-time, limited amnesty program allowed qualified non-citizens who met its strict deadlines to obtain permanent resident status. To qualify, non-citizens were required to show that they had entered the United States before January 1, 1982, and had resided unlawfully and continuously in the United States from that date until the date they applied for amnesty. Non-citizens who entered with a valid nonimmigrant status that later expired could also qualify for amnesty by showing that their unlawful status was known to the U.S. government. Applicants were specifically required to (1) have been physically present in the U.S. since November 1986, except for “brief, casual, and innocent” absences; (2) meet most of the requirements of immigrant admissibility to the United States; (3) have not been convicted of any felony or of three or more misdemeanors committed in the United States; (4) have not assisted in any form of persecution; and (5) register for the draft, if required to do so.

Non-citizens who met these requirements and filed an application between May 5, 1987, and May 4, 1988, were granted temporary residence. After 18 months of temporary residence, the non-citizens had one year in which to apply for adjustment to permanent resident status or they would become undocumented once again. To adjust to permanent resident status, applicants were again required to meet the criteria for permanent residence and also meet minimal English and civics requirements.

IRCA mandated procedures to ensure strict confidentiality. The Act allowed voluntary organizations to receive applications and forward them to the INS. Whether a non-citizen applied through such an organization or directly to the INS, access to information in the applications was restricted to INS officers with no deportation responsibilities and the INS could only use the information to make a determination on the application or impose penalties for false statements.

Despite these precautions, response to the amnesty program was less enthusiastic than expected. The INS originally estimated that between two and four million applications would be filed by the almost 5.5 million illegals estimated to be in the Country, but when the program ended, only 1.4 million people had applied for amnesty.

A proposal to extend the application deadline passed the House of Representatives but died in the Senate, due to fears that an extension would send the message that the U.S. could not enforce its immigration laws. The program thus ended as planned on May 4, 1988.

Another concern in adopting IRCA was the potential adverse financial impact on the states. For this reason, IRCA included extensive provisions disqualifying newly legalized non-citizens (except Cuban/Haitian entrants) from receiving most federal public welfare assistance for five years. Appropriations were also included to compensate state and local governments for other public assistance and medical benefits conferred upon people granted amnesty, as well as for the costs of incarcerating undocumented non-citizens and “Mariel” Cubans.

IRCA also established a separate program for granting temporary and permanent status to qualified agricultural workers. This program was the result of agribusiness pressure for greater availability of such farm workers.

THE IMMIGRATION ACT OF 1990

In 1990, Congress passed a series of amendments to the Immigration and Nationality Act, collectively referred to as the Immigration Act of 1990 (“1990 Act” also known as “IMMACT 90”).

The most visible feature of IMMACT 90 was the increase by approximately 35% in the numerical limitation system, or overall immigration allowed. IMMACT 90 established an annual limit for worldwide immigration of 700,000 for three years, after which it decreased to 675,000. Because other provisions of the 1990 Act allowed immigration of groups not counted in the 700,000, and a separate law permitted as many as 125,000 refugees to be legally admitted, the actual worldwide immigration limit was closer to 800,000.

This number represented a nearly 300% increase over the 290,000 immigrants allowed in 1978. 

The 1990 Act increased the allocation for both family-related and employee-related immigration. In addition, the new law created a separate basis by which “diversity” immigrants, that is, nationals of countries with relatively low numbers of immigrants since 1965, could gain entry.

Of the first 700,000 annual allotment, 465,000 visas were made available to family-sponsored immigrants, 140,000 for employment-based immigrants, and 55,000 for diversity immigrants.

Beginning October 1, 1991, all family-sponsored immigration was limited to approximately 480,000 annually for two years, after which the yearly limit dropped to 465,000. The relatively large percentage of the overall limit allocated to family-related immigration reflected the continued commitment to family unity as a primary goal of immigration policy.

There is still no limit on immigration by immediate relatives.

The 1990 Act did guarantee admission of at least 226,000 other relatives of U.S. citizens and permanent residents, an increase of approximately 65,000 over the former quota, set just 4 years previously in 1986.

THE ACTS OF 1996 (AEDPA and IIRIRA)

Three new immigration acts were signed by President Bill Clinton in 1996.

The first of these acts was the Antiterrorism and Effective Death Penalty Act (AEDPA), which became law on April 24, 1996.

The second was the Personal Responsibility and Work Opportunity Reconciliation Act (Welfare Reform Act), which became law on August 22, 1996. The changes made by the Welform Reform Act were part of a comprehensive reform of the American Welfare System and were not reforms solely made to target immigrants or illegal immigrants.

The third was the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which became law on September 30, 1996. The AEDPA and IIRIRA increased the number of criminal acts for which a non-citizen could be removed and eliminated nearly all forms of relief for non-citizens with criminal convictions.

IIRIRA also stiffened the requirement for affidavits of support for immigrants entering on the basis of their relationship to U.S. citizens or permanent residents. A sponsor must agree in the affidavit to provide support for the immigrant at an annual income that is not less than 125% of the federal poverty standard. Also, the sponsor must reimburse the government if the non-citizen receives means-tested public benefits within ten years of admission, unless he or she has naturalized. IIRIRA also added a ground of removability for any non-citizen who becomes a “public charge” within five years of admission.

Like the affidavit of support requirement, the 1996 Welfare Act reflected Congress’ concern that immigrants were placing an increasing burden on the federal budget. The Welfare Act made most non-citizens, including permanent residents, ineligible for federal benefits such as food stamps and Supplemental Security Income (SSI). Immigrants who entered the country after August 22, 1996, were ineligible for all means-tested public benefits for a period of five years. The Welfare Act also authorized the states to deny benefits to certain classes of non-citizens.

In 1998 reinstated federal benefits for most permanent residents who were receiving them before passage of the Act.

SECTION 434 & SECTION 642 of the 1996 ACT

The 1996 law states the following: 

Pursuant to § 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, P.L. 104-193) and § 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, P.L. 104-208) states and localities may not limit their governmental entities or officers from maintaining records regarding a person’s immigration status, or bar the exchange of such information with any federal, state, or local entity.

This language was placed in the “Comprehensive Immigration Reform” of 1996 in repsonse to the creation “Sanctuary Cities” and the adoption of “Sanctuary City Statutes” by many U.S. cities,

As the previous parargarphs clearly establish, Immigration Laws and Quotas are the responisbility of the Federal Government, any attempt by State of City Governments to usurp this power from the Federal Government is unconstitutional. A States attempt to enforce a Federal Immigration Law is not unconstitutional. Simply put, while States and Cities don’t create Immigration Law, they are expected to enforce them.

http://www.ilw.com/immigrationdaily/news/2009,1026-crs.pdf

 WHAT IS A SANCTUARY CITY?

The term “Sanctuary City” refers to a city or state that enacts policies which are favorable to illegal immigrants. Specifically, sanctuary cities often mandate local laws which prevent inquiry into a person’s immigration status.

How does one administer the Federal, State and Local criminal laws and civil laws governing the allocation and distribution  of Federal, State and Local Welfare benefits? 

Sanctuary policies are a violation of federal law, such as the section 642(a) of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which prohibits the embedding of illegal immigrants, and the March 2005 United States Supreme Court case, Muehler v Mena, which stated that law enforcement has the right to ask about immigration status.

While the laws differ from Commmunity to Community, an example of a “Sanctuary City” ordinance, taken from the city of Tacoma Park, Maryland, follows: 

“Introduced by: Councilmember Seamens First Reading: October 22, 2007:   Second Reading: October 29, 2007

CITY OF TAKOMA PARK, MARYLAND, ORDINANCE NO. 2007-58,

AN ORDINANCE REAFFIRMING AND STRENGTHENING THE CITY OF TAKOMA PARK’S IMMIGRATION SANCTUARY LAW

WHEREAS, in 1985, as an expression of these values, the Takoma Park City Council passed the City of Refuge Ordinance, which prohibits City employees, including police officers, from cooperating with federal immigration authorities in the enforcement of civil and criminal immigration laws and prohibits City employees from requesting or disclosing information regarding the immigration status of individuals.

NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF TAKOMA PARK, MARYLAND:

SECTION 1. Title 9, Civil Liberties and Human Relations, Chapter 4, Rights of Non-U.S. Citizens in Takoma Park, of the Takoma Park Code (2004 edition) is amended as follows:                                                                   9.04.010 No City enforcement of immigration laws.                            A. No agent, officer or employee of the City, in the performance of official duties, shall assist the United States Bureau of Immigration and Customs Enforcement in the investigation or arrest of any persons for civil or criminal violation of the immigration and nationality laws of the United States.

9.04.020 No inquiries into citizenship. No agent, officer or employee of the City, in the performance of official duties, shall ask any person about his or her citizenship or immigration status or inquire about any person’s citizenship or immigration status with any third person. No agent, officer or employee of the City, in the performance of official duties, shall release any information regarding the citizenship or residency status of any City resident.immigration status of any individual to any third party.”

http://www.takomaparkmd.gov/clerk/agenda/items/2007/102907-2.pdf

The intent of the Tacoma Park, Maryland statute is obvious, a liberal attempt to usurp the Federal Governements authoirty to regulate immigration into the United States and to disrupt the co-operation between Federal, State and City Law Enforcement officials while they attempt to enforce the laws of this Country. How does one enforce Federal or State welfare laws that prohibit dispersing benefits to illegal aliens while reserving the benefits for citizens and “legal immigrants” if one cannot make a legal determination of who is in the Country legally and who is here illegally? 

The devastating effect this short sighted, unconstitutional activity could have on the safety of America became all to clear on September 11, 2001.

 THE COMPREHENSIVE IMMIGRATION REFORM 09/11/2001

The September 11, 2001, attacks resulted in significant changes in immigration law and policy. Congress passed several acts intended to improve national security, including the USA Patriot Act (115 Stat. 272), the Enhanced Border Security and Visa Entry Reform Act (116 Stat. 543), and the Homeland Security Act (116 Stat. 2135). One of the most dramatic consequences of these measures was the elimination of the INS and the transfer of immigration functions to the Department of Homeland Security in 2003. Other provisions of these acts broadened the class of people who can be excluded or removed for terrorist activity, mandated increased screening of applicants for admission, and called for new data systems to track non-citizens in the U.S.

Department of Homeland Security

In November 2002, Congress passed the Homeland Security Act (116 Stat. 2135), which abolished the Immigration and Naturalization Service and transferred most immigration functions to the Department of Homeland Security (DHS). As suggested by the Commission on Immigration Reform some years earlier (see § 1-7.6, supra), the INS’ service and enforcement functions were separated in this reorganization. These functions have been divided among three bureaus within the DHS: the U.S. Citizenship and Immigration Services (USCIS), which adjudicates immigrant and nonimmigrant petitions, naturalization petitions, asylum applications, and other matters; the U.S. Customs and Border Protection (CBP), which includes the Border Patrol and immigration inspections at ports of entry; and the U.S. Immigration and Customs Enforcement (ICE), which enforces immigration laws in the interior of the U.S..

Restrictions on Immigration

The USA Patriot Act (115 Stat. 272) broadened the definition of terrorist as used in the grounds for inadmissibility and removal. Under this Act, anyone who endorses or provides financial support to a terrorist organization, or who actually participates in terrorist activities, is inadmissible or removable.

To identify possible terrorists, U.S. consulates are required to check visa applicants’ names against “lookout lists” prior to issuing a visa.

Monitoring of Non-Citizens in the U.S.

After September 11, the INS was criticized for its inability to track non-citizens in the U.S. or to identify persons who might pose a threat to national security. In 2002, the INS promulgated regulations requiring nonimmigrants from twenty-five countries to register at INS district offices and report periodically as to their whereabouts and activities in the U.S. See § 8-2.2(c), infra. That same year, the INS and the State Department implemented a new database system, called “SEVIS” to track foreign students. Immigration authorities also began to enforce change of address reporting requirements that had been part of the INA since 1952 but were rarely publicized or enforced.

ATTEMPTED IMMIGRATION REFORM OF 2007

U.S. House Passes Drake Amendment to Eradicate Sanctuary Cities. Amendment withholds federal funding for localities that violate Section 642(a) of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act

July 25, 2007

Washington D.C. — The U.S. House of Representatives today passed an amendment by Representative Thelma Drake (R-Va.) to H.R. 2638, the Commerce, Justice, Science and Related Agencies Appropriations Act for Fiscal Year 2008.  Passing by a voice vote, Rep. Drake’s amendment aims to eliminate what are commonly referred to as “sanctuary policies” in local municipalities, whereby law enforcement officials are barred from asking suspects about their immigration status or reporting them to Immigration & Customs Enforcement (ICE).  The amendment will ensure that existing law is enforced uniformly across the country by withholding federal funding for cities that choose to violate section 642(a) of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

“Although predominately a federal issue, we have all witnessed how the epidemic of illegal immigration can impact members of a local community,” said Rep. Drake.  “Solving this problem is going to require the commitment from all levels of government to engage in an active partnership.

“Sanctuary cities undermine these partnerships by willfully and selectively choosing to disregard federal laws that are already on the books.  Most Americans agree that if you want to get serious about addressing our nation’s failed immigration system, enforcing existing laws is a good place to start.

“This amendment says that when Congress took steps to eradicate sanctuary policies back in the Nineties, we meant it.  I am committed to ensuring that this language remains in the legislation and is signed into law by the President.”

Under section 642(a) of IIRIRA, a “Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

http://www.house.gov/apps/list/press/ca50_bilbray/morenews/drakeamend.shtml

The Democratically controlled U.S. Senate blocked a vote on the Drake Amendment in 2007 & 2008.

THE ARIZONA LAW 2009

See: https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/

The State of Arizona passed Arizona House Bill 2162 and it was signed into law on April 26, 2010. http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.htm

On the day the law wasssigned into effect Arizona has at least 4 ”Sanctuary Cities” violating the Federal Law; Phoenix, Tuscon, Chandler and Mesa. 

Section 3 of the Arizona is titled; “Cooperation and assistance in enforcement of immigration laws.”

Section 3 of the Arizona Law mandates that all State, Local and City Employees enforce both Federal and State laws regarding criminal acts committed by illegal aliens. The law mandates that the laws be enforced “concurrently” by all Federal, State and Local law enforcement officials.

Section 3 does not permit law enforcement officials to stop and ask anyone for their ID. No one!

Section 3 does require that once law enforcement officials have “stoppped, detained or arrested” an individual and are “conducting a criminal investigation”, the suspect will be asked for identification.

All indivuals who find themselves the subject of an investigation will be asked for their ID.

PRESUMPTION OF LAWFUL CITIZENSHIP UNDER THE ARIZONA LAW

Any individual who can produce one of the following pieces of identification is presumed to be a “lawful citizen of the United States”:  1).  A valid Arizona driver license. 2).  A valid Arizona nonoperating identification license. 3).  A valid tribal enrollment card or other form of tribal identification.  4).  If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

Section 3 also provides, “A law enforcement official or agency may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution”.

FEDERAL DETERMINATION OF CITIZENSHIP STATUS UNDER THE ARIZONA LAW

If some one is “stopped, detained or arrested” and cannot produce identification, the law enforcement officals are instructed to continue their investigation, however, the determination of whether any individual is an “illegal alien” is determined according to Federal Law: “In the implementation of this section, an alien’s immigration status may be determined by: 1.  A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status, or 2.  The United States Immigration and Customs Enforcement or the United States Customs and Border Protection Act pursuant to 8 United States Code section 1373(c).”

THE TIP OF THE ICEBERG – SCAAP PAYMENTS – THE HIDDEN COST OF ILLEGAL IMMIGRATION: 

SCAAP is a payment program administered by OJP, through its component the Bureau of Justice Assistance (BJA), in conjunction with the Immigration and Customs Enforcement (ICE) bureau within the Department of Homeland Security (DHS).2 SCAAP was authorized by the Violent Crime Control and Law Enforcement Act of 1994 to provide federal assistance to states and localities for the costs of incarcerating certain criminal aliens who are in custody based on state or local charges or convictions.3 In fiscal year (FY) 2005, BJA distributed $287.1 million in SCAAP payments to 752 state, county, and local jurisdictions.4

The following table displays the 10 jurisdictions that received the largest SCAAP payments from the FY 2005 appropriation. Collectively, they accounted for nearly 69 percent of the SCAAP payments made from that appropriation.

TOP TEN SCAAP RECIPIENTS – FY 2005
State Jurisdiction Amount
California State of California5 $ 85,953,191
New York State of New York 24,022,356
Texas State of Texas 18,582,484
New York City of New York 15,893,255
Florida State of Florida 12,806,110
California Los Angeles County6 12,530,034
Arizona State of Arizona 12,139,791
California Orange County 6,562,437
Illinois State of Illinois 4,731,269
Massachusetts State of Massachusetts 4,728,549
TOTAL $197,949,476
       

 

  The program only reimburses states and localities that incur correctional officer salary costs for incarcerating undocumented criminal aliens who: (1) have at least one felony or two misdemeanor convictions for violations of state or local law, and (2) are incarcerated for at least four consecutive days during the established reporting period.7 Applicants for funding are required to provide correctional officer salary costs, the total of all inmate days, and details about eligible inmates housed in their correctional facilities during that period.

In April 2005, the Government Accountability Office (GAO) issued a report stating that 80 percent of the SCAAP aliens were incarcerated in the five states of Arizona, California, Florida, New York, and Texas in FY 2003.

The total costs for Federal, State and Local detection, apprehension, arrest and incarceration  are in the 100,’s of billions of dollars.

REPEAT OFFENDERS IN THE ILLEGAL IMMIGRANT COMMUNITY

The Department of Homeland Security reported the following to Congress.

Congression asked the Department of Homeland Security to determine how many criminal offenses were committed by criminal aliens who were released from state or local custody without a referral to DHS for removal from the United States.

To address this question, the DHS performed limited testing to determine the number of subsequent arrests of criminal aliens who were released from state or local custody. We based our testing on information from the vetted FY 2004 SCAAP database, which was the last year when ICE reported to BJA on the status of every person identified in support of applications for SCAAP funding. There were 262,105 records in that database. We requested assistance from the Federal Bureau of Investigation (FBI) to have those records compared to arrest data in the FBI’s National Crime Information Center (NCIC).

After querying NCIC, the FBI provided us with nearly 433,000 text files that could not be searched by automated means. The volume of files was too great to search manually and quantify the results. Consequently, we judgmentally selected a sample of 100 criminal histories, which we reviewed for evidence of arrests of criminal aliens subsequent to June 30, 2003. The criminal histories for 73 of the 100 individuals documented at least one arrest after that date. Those 73 individuals accounted for a total of 429 arrests, with 878 charges and 241 convictions. These figures represent an average of nearly six arrests per individual.

The charges for the 73 individuals ranged from traffic violations and trespassing to more serious crimes, such as burglary or assault. Some of those charges included:

• 166 drug-related;

• 37 immigration-related;

• 213 burglary, robbery, or theft;

• 40 assault;

• 10 property damage;

 • 3 terrorist threat;

and 13 weapons charges.

Based on this limited sample, the DHS could not statistically extrapolate the number of offenses committed by undocumented criminal aliens who were released from local custody without a referral to ICE. Based on the information available to us in the criminal histories, we could not determine the number of the criminal aliens in our sample that were deported, if any, and later arrested after reentering the United States. We also could not determine if ICE was notified before the criminal aliens in our sample were released from custody. But if this data is indicative of the full population of 262,105 criminal histories, the rate at which released criminal aliens are rearrested is extremely high. http://www.justice.gov/oig/reports/OJP/a0707/final.pdf

IMMIGRATION 2010

Today, in 2010, as in every year since the mid 1980′s, the US has allowed at least 1 million (1,000,000) new immigrants to enter this Country. More than 1 million each and every year. Yes, despite our economic down turn, over 1,000,000 immigrants entered this Country as LPRs (Legal Permanent Residents) in 2009. http://www.dhs.gov/xlibrary/assets/statistics/publications/lpr_fr_2009.pdf            Yes, the exact number, according to the Obama Administration, was            1,130, 818 ( 1 million, 130 thousand, 8 hundred and eighteen) for the year ending December 2009.

An additional 1,000,000 immigrants were granted the rights of “Naturalized Citizens” in 2009. http://www.dhs.gov/xlibrary/assets/statistics/publications/natz_fr_2009.pdf

In addition to these numbers, believe it or not, it is estimated that 160 million (160,000,000) non-immigrant admissions occur on an annual basis. Non-immigrant admission include, ”tourists and business travelers from Canada, Mexican nationals with Border Crossing Cards, ….”.  http://www.dhs.gov/xlibrary/assets/statistics/publications/ni_fr_2009.pdf

The United States allows more “legal” immgration every year than all the other Countries in the world  combined.

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